
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-02-00132-CV


Eric Van Zandt, Appellant

v.

Prescott Legal Search, Inc.; and Larry Prescott, Appellees





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN000858, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	Appellant Eric Van Zandt sued appellees Prescott Legal Search, Inc. and Larry
Prescott (collectively, "Prescott") for breach of contract.  The trial court granted Prescott's no-evidence motion for summary judgment.  Van Zandt brings this restricted appeal and by one issue,
challenges the trial court's summary judgment.  We will affirm the trial court's judgment.

BACKGROUND (1)
	Van Zandt was a legal recruiter employed by Prescott.  He signed a contract with
Prescott in April 1996, which remained in effect for one year.  Van Zandt entered into another
agreement dated April 8, 1997, which was signed by Larry Prescott as president of Prescott Legal
Search.  The agreement was to terminate December 31, 1997, and then automatically extend for
additional one-year terms subject to the right to terminate the agreement.  On September 17, 1999,
Van Zandt resigned from his position with Prescott.
	Alleging that Prescott failed to pay commissions due to Van Zandt under the terms
of the April 1997 agreement for the period beginning January 1, 1999 and ending September 17,
1999, Van Zandt sued Prescott for breach of contract.  In his petition, Van Zandt also alleged that
Prescott Legal Search is an alter ego of Larry Prescott and sought individual liability against him. 
In response, Prescott alleged that the 1997 agreement was modified and superceded by a subsequent
agreement, which became effective January 1, 1999, and denied that Prescott Legal Search was
merely an alter ego of Larry Prescott.  Prescott also filed counterclaims against Van Zandt.
	On March 19, 2001, Prescott filed a no-evidence motion for summary judgment,
asserting that there is no evidence to support Van Zandt's breach-of-contract claims against Prescott
Legal Search and no evidence to support a claim for individual liability against Larry Prescott.  See
Tex. R. Civ. P. 166a(i).  Van Zandt was served with notice of a hearing on the motion set for April
12.  Van Zandt, however, failed to respond to the motion for summary judgment and failed to appear
at the hearing.  On April 12, the trial court granted Prescott's no-evidence motion for summary
judgment.  On May 17, the trial court granted Prescott's motion for nonsuit of counterclaims and
dismissed Prescott's counterclaims without prejudice.  Van Zandt filed his notice of restricted appeal
on October 11, 2001.

DISCUSSION
	A party pursuing a restricted appeal must satisfy four elements: (1) notice of the
restricted appeal must be filed within six months after the judgment is signed; (2) by a party to the
lawsuit; (3) who did not participate in the hearing that resulted in the judgment complained of and
did not file a timely postjudgment motion or request for findings of fact and conclusions of law; and
(4) error must be apparent on the face of the record.  Tex. R. App. P. 26.1(c), 30; Barker CATV
Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex. App.--Houston [1st Dist.] 1999, no pet.). 
Review by restricted appeal affords an appellant the same scope of review as an ordinary appeal, that
is, a review of the entire case.  Norman Communications v. Texas Eastman Co., 955 S.W.2d 269,
270 (Tex. 1997) (citing Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965)).  The only restriction
on the scope of review is that the error must appear on the face of the record.  Id. (citing General
Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex. 1991)).  The face of the record,
for purposes of a restricted appeal, consists of all papers on file in the appeal.  Id. (citing DSC Fin.
Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991)).  The parties agree that the only element
contested by this appeal is whether error is apparent on the face of the record.
	In a single issue with multiple sub-parts, Van Zandt raises several complaints
generally challenging the trial court's rendition of summary judgment in favor of Prescott.  Van
Zandt's issue is multifarious.  If a court concludes that argument under an issue is multifarious, the
court can refuse to review the issue, or it may consider the arguments if it can determine, with
reasonable certainty, the basis of the alleged error.  Shull v. United Parcel Serv., 4 S.W.3d 46, 51
(Tex. App.--San Antonio 1999, pet. denied); Bell v. Texas Dep't of Crim. Justice-Inst'l Div., 962
S.W.2d 156, 157 n.1 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).  In the interest of justice,
we will address those issues we can reasonably construe.
	Van Zandt attacks the legal and factual sufficiency of the trial court's judgment.  We
review a no-evidence summary judgment under the same legal sufficiency standard used to review
a directed verdict.  Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.--Austin 1998, no
pet.).  In other words, we must determine whether the evidence produced by the respondent raises
a genuine fact issue on the material questions presented.  Id.  When analyzing no-evidence summary
judgments, we consider the evidence in the light most favorable to the respondent; every reasonable
inference is indulged in favor of the respondent, and all doubts are resolved in his favor.  Id. 
	To prevail on his breach of contract claim, Van Zandt had the burden to prove (1) the
existence of a valid contract, (2) his performance under the contract, (3) breach of the contract by
Prescott, and (4) damages sustained by Van Zandt as a result of the breach.  Foster v. Centrex
Capital Corp., 80 S.W.3d 140, 143-44 (Tex. App.--Austin 2002, pet. denied).  In its motion for
summary judgment, Prescott asserted that Van Zandt had no evidence to support his claims that (1)
the 1997 agreement, which Van Zandt claims was breached, remained in effect until September 1999
and was never modified or superceded, (2) Van Zandt performed all his obligations under the
agreement, (3) Prescott breached the agreement by failing to pay Van Zandt all commissions owed
under the agreement, (4) Van Zandt suffered damages, and (5) Larry Prescott agreed, in his
individual capacity, to pay commissions to Van Zandt and breached that agreement.  
	To defeat the no-evidence motion for summary judgment, Van Zandt was not required
to marshal all his proof, but his response must point out evidence that raises a fact issue on the
challenged elements.  Tex. R. Civ. P. 166a(i); Saenz v. Southern Union Gas Co., 999 S.W.2d 490,
493-94 (Tex. App.--El Paso 1999, pet. denied); Jackson, 979 S.W.2d at 70-71.  If the respondent
fails to present some summary judgment evidence raising a genuine issue of material fact, the motion
must be granted.  Saenz, 999 S.W.2d at 494; Jackson, 979 S.W.2d at 70-71.  The record reflects, and
Van Zandt concedes, that he filed no response to Prescott's no-evidence motion for summary
judgment.  Because Van Zandt failed to present any summary judgment evidence in response to
Prescott's motion, the trial court was required to grant summary judgment.  Saenz, 999 S.W.2d at
494; Jackson, 979 S.W.2d at 70-71.
	Van Zandt argues on appeal that sufficient evidence existed to raise a genuine fact
issue on the material elements of his claim.  For support, he directs this Court to several documents
included in the appendix attached to his appellate brief.  With the exception of a copy of the 1997
agreement, these documents were not presented to the trial court.  In a restricted appeal, our review
is confined to errors apparent on the face of the record; the face of the record consists of "all the
papers on file in the appeal."  Norman, 955 S.W.2d at 270.  This Court cannot consider matters
outside of the clerk's record or the reporter's record; thus, we will not consider for the first time on
appeal documents attached to the brief that were not before the trial court.  See Stankiewicz v. Oca,
991 S.W.2d 308, 311-12 (Tex. App.--Fort Worth 1999, no pet.); White v. Rupard, 788 S.W.2d 175,
179 (Tex. App.--Houston [14th Dist.] 1990, writ denied).  
	Although the 1997 agreement is included in the clerk's record, this document was
attached to Van Zandt's petition initiating his suit; it was not produced in response to Prescott's no-evidence motion for summary judgment.  Van Zandt was required to present some summary
judgment evidence raising a genuine fact issue on the elements attacked.  The mere existence of this
agreement in the trial court's file is insufficient to satisfy Van Zandt's burden of producing some
summary judgment evidence.  See Saenz, 999 S.W.2d at 494.  Even if the agreement were properly
presented as summary judgment evidence, it merely addresses the existence of a contract between
Prescott and Van Zandt; it fails, however, to raise genuine fact issues regarding the remaining
elements raised in Prescott's summary judgment motion.
	Van Zandt also argues that the trial court erred in essentially granting a summary
judgment by "default" based on his failure to respond to the summary judgment motion when
Prescott failed to substantiate its summary judgment claims with sufficient summary judgment proof. 
Van Zandt appears to confuse a no-evidence motion for summary judgment with a traditional motion
for summary judgment.  He fails to recognize that Prescott's filing of a no-evidence motion for
summary judgment shifted the burden of raising a genuine issue of material fact to him.  See
Jackson, 979 S.W.2d at 71.  Prescott was not required to present any evidence in support of its
motion.  When Van Zandt failed to carry his burden of presenting some summary judgment
evidence, the trial court was required to grant the summary judgment.  See Saenz, 999 S.W.2d at 494. 
The summary judgment was thus based on the absence of summary judgment evidence, not on Van
Zandt's mere failure to respond to the motion.  See Jackson, 979 S.W.2d at 71.  
	Finally, Van Zandt challenges the factual sufficiency of the evidence to support the
summary judgment.  Prescott was not required to and did not present any summary judgment
evidence in support of its no-evidence motion for summary judgment.  Van Zandt, as we have
already noted, did not present any summary judgment evidence in response to the motion.  Thus, a
factual sufficiency challenge is an inappropriate challenge to the summary judgment.  We overrule
Van Zandt's issue.

CONCLUSION
	Having found no error apparent on the face of the record, we overrule Van Zandt's
issue on appeal and affirm the trial court's summary judgment.


					__________________________________________
					David Puryear, Justice
Before Justices Kidd, Patterson and Puryear
Affirmed
Filed:   January 24, 2003
1.   The background facts are taken largely from the appellant's brief and pleadings on file with
the Court.

