Court of Appeals of Texas, Twelfth District, Tyler
from the 392nd District Court of Henderson County, Texas (Tr.
Ct. No. 2013B-0254)
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Ramsey and Sandra Ramsey appeal the trial court's summary
judgment granted against them and in favor of Caterpillar,
Inc. They present three issues on appeal. We affirm.
January 2012, Gary was employed at JC's Tire Shop in
Payne Springs, Texas. He was instructed to complete a tire
change on a 120H Motor Grader manufactured and sold by
Caterpillar. According to Gary, he was asked to assist with
inflating a flat tire on the Motor Grader, which was equipped
with a multi-piece rim/wheel assembly. He had never worked on
a multi-piece rim. Gary attempted to inflate the tire prior
to installing the necessary lock ring, and the assembly
"explosively separated." Gary alleges that he
suffered a traumatic brain injury as a result of the
the Ramseys sued Caterpillar for negligence, gross
negligence, strict liability design defect, and strict
liability marketing defect. Sandra also asserted derivative
claims against Caterpillar. Caterpillar moved for summary
judgment on both traditional and no evidence grounds. It also
moved to strike portions of the summary judgment evidence
attached to the Ramseys' responses. The trial court
sustained Caterpillar's objections and, after a hearing,
granted summary judgment in favor of Caterpillar. This appeal
for Summary Judgment
Ramseys present three issues challenging the trial
court's summary judgment ruling. First, they contend the
trial court abused its discretion by sustaining
Caterpillar's objections to the summary judgment
evidence. Second, they maintain that they presented
sufficient evidence to overcome Caterpillar's no-evidence
summary judgment on marketing defect and design defect
claims. Third, they urge that Caterpillar did not
conclusively establish its affirmative defense that it was a
as in this case, a party moves for both a traditional and no
evidence summary judgment, we first review the trial
court's summary judgment under the no evidence standards
of Rule 166a(i). Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). If the no evidence motion was
properly granted, we do not reach the arguments made in the
traditional motion. See id. at 602. This rule
applies when the same issues were raised in both the
traditional and no evidence grounds. Dunn v. Clairmont
Tyler, L.P., 271 S.W.3d 867, 870 (Tex. App.-Tyler 2008,
no pet.). Accordingly, we first review the Ramseys'
challenge to Caterpillar's no evidence motion for summary
an adequate time for discovery has passed, a party without
the burden of proof at trial may move for summary judgment on
the ground that the nonmoving party lacks supporting evidence
for one or more essential elements of its claims.
See Tex. R. Civ. P. 166a(i). Once a no evidence
motion has been filed in accordance with Rule 166a(i), the
burden shifts to the nonmovant to bring forth evidence that
raises a fact issue on the challenged evidence. See
Ridgway, 135 S.W.3d at 600. We review a no evidence
motion for summary judgment under the same legal sufficiency
standards as a directed verdict. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no
evidence motion is properly granted if the nonmovant fails to
bring forth more than a scintilla of probative evidence to
raise a genuine issue of material fact as to an essential
element of the nonmovant's claim on which the nonmovant
would have the burden of proof at trial. Id. at 751.
If the evidence supporting a finding rises to a level that
would enable reasonable, fair minded persons to differ in
their conclusions, then more than a scintilla of evidence
exists. Id. Less than a scintilla of evidence exists
when the evidence is so weak as to do no more than create a
mere surmise or suspicion of a fact, and the legal effect is
that there is no evidence. Id.
determining whether an appellant has raised more than a
scintilla of evidence regarding the grounds on which a no
evidence motion for summary judgment was based, we are
limited to the summary judgment proof produced in the
response. DeGrate v. Exec. Imprints, Inc., 261
S.W.3d 402, 408 (Tex. App.-Tyler 2008, no pet.). We review
the record de novo and in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving
any doubts against the motion. See Sudan v. Sudan,
199 S.W.3d 291, 292 (Tex. 2006). All theories in support of
or in opposition to a motion for summary judgment must be
presented in writing to the trial court. See Tex. R.
Civ. P. 166a(c). If the trial court's order does not
specify the grounds on which it granted summary judgment, we
affirm the trial court's ruling if any theory advanced in
the motion is meritorious. State Farm Fire & Cas. Co.
v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).