Roventini v. Ocular Sciences, Inc.

111 S.W.3d 719, 2003 Tex. App. LEXIS 5355, 2003 WL 21470326
CourtCourt of Appeals of Texas
DecidedJune 26, 2003
Docket01-02-00780-CV
StatusPublished
Cited by101 cases

This text of 111 S.W.3d 719 (Roventini v. Ocular Sciences, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 2003 Tex. App. LEXIS 5355, 2003 WL 21470326 (Tex. Ct. App. 2003).

Opinions

[721]*721OPINION

ELSA ALCALA, Justice.

Appellants, Donald Roventini and Tammy Roventini, individually and as next Mends of Michael Roventini (collectively, the Roventinis) bring this restricted appeal under rule 30 of the Rules of Appellate Procedure to challenge a no-evidence summary judgment rendered in favor of appel-lees, Ocular Sciences, Inc., and See-in-Focus Optical, Inc. See Tex.R.App. P. 30, 26.1(c) (restricted appeal and notice requirements for restricted appeal); Tex.R. Civ. P. 166a(i) (no-evidence summary judgment). The Roventinis contend that error on the face of the record mandates reversal. We affirm.

Background Facts and Procedural History

The Roventinis’ pleadings allege that contact lenses purchased for Michael were defective and damaged his vision. They sued appellees, See-N-Focus, as seller, and Ocular Sciences, Inc., as manufacturer, of the allegedly defective lenses, seeking damages for negligence, strict products liability, breach of warranty, and violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA).1

After initial discovery, the seller and manufacturer filed motions for summary judgment. The face of the record reflects service of both motions and accompanying notices of oral hearing on the Roventinis’ trial counsel. The Roventinis did not respond to the motions for summary judgment, as the trial court noted in its judgment, and did not participate in the summary-judgment hearing. The Ro-ventinis filed no postjudgment motions tó challenge the final, take-nothing summary judgment rendered by the trial court on March 1, 2002, and did not otherwise challenge the summary judgment except by filing a notice of a restricted appeal on July 24, 2002.

Standards of Review

We apply two standards of review of this appeal: those that govern no-evidence summary judgments and those that govern restricted appeals.

A. Restricted Appeal

A restricted appeal is a direct attack on a judgment. Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting Corp., 62 S.W.3d 308, 309 (TexApp.-Houston [1st Dist.] 2001, no pet.). The elements necessary to succeed on a restricted appeal are as follows: (1) the notice of restricted appeal must be filed within six months after the judgment is signed; (2) by a party to the lawsuit; (3) who neither participated in the hearing that resulted in the judgment nor filed a timely postjudgment motion or request for findings of fact and conclusions of law; and (4) the face of the record must disclose the claimed error. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997); Barker CATV Constr. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex.App.-Houston [1st Dist.] 1999, no pet.). It is undisputed that the Roventinis complied with the first three elements.

Although review by restricted appeal affords review of the entire case and thus permits the same scope of review as an ordinary appeal, the face of the record must reveal the claimed error. See Norman Communications, Inc., 955 S.W.2d at 270 (decided under predecessor writ-of-error practice); Barker CATV Constr., 989 S.W.2d at 791. The face of the record in a restricted appeal consists [722]*722of the papers on file with the court when it rendered judgment. General Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 944 (Tex.1991) (decided under writ-of-error practice); Barker CATV Constr., 989 S.W.2d at 794 (on motion for rehearing). Accordingly, we may not consider, as part of the record, evidence or documents that were not before the trial court when it rendered judgment. See General Elec. Co., 811 S.W.2d at 944; Barker CATV Constr., 989 S.W.2d at 794-95.

B. “No-Evidence” Summary Judgment

After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Crv. P. 166a(i); Brewer & Pritchard, P.C. D. Johnson, 7 S.W.3d 862, 866 (TexApp.-Houston [1st Dist.] 1999, no pet.). The motion must specify which essential elements of the opponent’s claim or defense lack supporting evidence. See Brewer & Pritchard, P.C., 7 S.W.3d at 866-67. Once the party seeking the no-evidence summary judgment files a proper motion, the respondent must bring forth evidence that raises a fact issue on the challenged elements. See Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (TexApp.-Austin 1998, no pet.). The party with the burden of proof at trial thus has the burden of proof in the summary-judgment proceeding. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (TexApp.-Houston [1st Dist.] 1999, no pet.).

The respondent need not “marshal its proof’ as for trial and need only “point out” evidence that raises a fact issue on the challenged elements. See Tex.R. Crv. P. 166a(i) cmt to 1997 change; Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 715 (TexApp.-Houston [1st Dist.] 2002, no pet.); see also Robinson v. Warner-Lambert, 998 S.W.2d 407, 410 (Tex.App.-Waco 1999, no pet.) (“A no-evidence motion for summary judgment places the burden on the nonmovant to present enough evidence to be entitled to a trial.”); Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L.Rev. 1303, 1356 (1998) (“[T]he mere filing of the motion shifts the burden to the respondent to come forward with enough evidence to take the case to a jury.”). If the respondent does not produce more than a scintilla of evidence to raise a genuine issue of material fact on the challenged element or elements, the trial court “must” grant the motion. Tex.R. Civ. P. 166a(i) and cmt. to 1997 change; see Brewer & Pritchard, P.C., 7 S.W.3d at 867; Flameout Design & Fabrication, Inc., 994 S.W.2d at 834.

Under rule 166a(i), therefore, as opposed to rule 166a(c), which governs traditional summary judgments, the trial court may render a summary judgment by default for lack of a response by the respondent, provided the movant’s motion warranted rendition of a final summary judgment based on lack of evidence to support the respondent’s claim or defense. See Jackson, 979 S.W.2d at 71 (contrasting summary judgment practice under rule 166a(c) and rule 166a(i) in rejecting contention that trial court may not grant summary judgment based solely on lack of response); see also

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Bluebook (online)
111 S.W.3d 719, 2003 Tex. App. LEXIS 5355, 2003 WL 21470326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roventini-v-ocular-sciences-inc-texapp-2003.