                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-471-CV


CHARLES L. BAXTER AND                                         APPELLANTS
SHARON G. MCPHERSON

                                       V.

SHARONDA A. BROWN                                                 APPELLEE

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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

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                                I. Introduction

     In a single issue, Appellants Charles L. Baxter and Sharon G. McPherson

appeal the trial court’s order granting a no-evidence summary judgment for

Appellee Sharonda A. Brown. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      On October 2005, Brown struck Baxter and McPherson’s son Evan with

her vehicle as he crossed the street. Evan died from injuries sustained in the

accident.

      In September 2007, Baxter and McPherson filed suit against Brown for

wrongful death—specifically claiming negligent operation of a motor vehicle.

In June 2008, Brown filed a no-evidence motion for summary judgment

asserting that there was no evidence of duty, breach, or causation to support

Baxter and McPherson’s negligence claim.          In August 2008, Baxter and

McPherson filed a response asserting that Brown’s motion contained only

allegations and no evidence. They also attached to their response McPherson’s

answer to a single interrogatory question as evidence to support their claim.

      Brown objected to McPherson’s interrogatory response. The trial court

sustained Brown’s objections and granted her no-evidence motion for summary

judgment. This appeal followed.

                                III. Discussion

      In their sole issue, Baxter and McPherson argue that the trial court erred

by granting Brown’s motion for summary judgment because “[Brown’s] bare

Motion for Summary Judgment was filed without the benefit of deposition

testimony, affidavits, exhibits, answers to interrogatories, or any other

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supporting evidence.” In support of their argument, they direct our attention

to Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548–49 (Tex.

1985), in which the Texas Supreme Court sets out the standard of review in

summary judgment cases.       Specifically, Baxter and McPherson state the

standard of review as follows:

            1. The movant for summary judgment has the burden
            of showing that there is no genuine issue of material
            fact, and that it is entitled to judgment as a matter of
            law.

            2. In deciding whether there is a disputed material fact
            issue precluding summary judgment, evidence
            favorable to the non-movant is true.

            3. Every reasonable inference must be indulged in
            favor of the non-movant and any doubts resolved in its
            favor.

They further state that “[e]ach issue expressly presented by motion or response

must then be proven. To be entitled to summary judgment, the movant must

conclusively prove all elements of his claim or defense.”              Baxter and

McPherson, however, misstate the law applicable to a no-evidence motion for

summary judgment,2 which did not exist at the time of the Nixon decision. The




      2
     … The standard of review and burden of proof that Baxter and
McPherson direct our attention to is applicable to traditional motions for
summary judgment. See Tex. R. Civ. P. 166a(b),(c).

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correct no-evidence summary judgment standard of review and burden of proof

are as follows.

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.      Tex. R. Civ. P. 166a(i).    The motion must

specifically state the elements for which there is no evidence. Id.; Johnson v.

Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court

must grant the motion unless the nonmovant produces summary judgment

evidence that raises a genuine issue of material fact.      See Tex. R. Civ. P.

166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact, then

a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981

S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). We review a

no-evidence summary judgment for evidence that would enable reasonable and

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fair-minded jurors to differ in their conclusions.   Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802,

822 (Tex. 2005)).

      Here, Brown filed a no-evidence motion for summary judgment and

therefore was not the party with the burden of proof or production. See Tex.

R. Civ. P. 166a(i).   A no-evidence summary judgment shifts the burden of

production to the nonmovants—here, Baxter and McPherson. See Moore, 981

S.W.2d at 269. Baxter and McPherson, therefore, had to produce evidence

sufficient to raise a genuine issue of material fact as to duty, breach, and

causation. Their response, however, does not specifically address each element

challenged by Brown in her no-evidence motion as required by rule 166a(i). See

Tex. R. Civ. P. 166a(i).

      The only evidence put forth by Baxter and McPherson was McPherson’s

answer to a single interrogatory question.3 However, answers to interrogatories

may be used only against the responding party. See Tex. R. Civ. P. 197.3.

McPherson may not use her own interrogatory response as evidence to support




      3
       … Although Baxter and McPherson do not expressly challenge the trial
court’s rulings on Brown’s objections, they impliedly do so in their argument
that Brown failed to produce evidence in support of her motion for summary
judgment.

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her claim.4   See id.; Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998);

Belteton v. Desco Steel Erectors & Concrete, Inc., 222 S.W.3d 600, 609 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). Because Baxter and McPherson

failed to raise a fact issue by producing more than a scintilla of probative

evidence on each element of their negligence claim, we hold that the trial court

properly granted Brown’s no-evidence motion for summary judgment.           See

Moore, 981 S.W.2d at 269. Accordingly, we overrule Baxter and McPherson’s

sole issue.

                                IV. Conclusion

      Having overruled Baxter and McPherson’s sole issue, we affirm the trial

court’s judgment.




                                           PER CURIAM

PANEL: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.

DELIVERED: June 18, 2009




      4
       … Furthermore, even if Baxter and McPherson could use McPherson’s
interrogatory response, they failed to specify which element, if any, the
response supported. See Estate of Bradburn v. Sawko, No. 02-02-00192-CV,
2003 WL 21359514, at *3 (Tex. App.—Fort Worth June 12, 2003, no pet.)
(mem. op.) (indicating nonmovant has burden to explain how the evidence
raises a material fact issue for the challenged elements).

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