Opinion

Affirmed and Opinion filed August 22, 2002

Affirmed and Opinion filed August 22, 2002.

In The

Fourteenth Court of Appeals

____________

NO.

14-00-00098-CV

____________

CHARLES FINLEY MILLER and BERRY ROBERTS, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF LINDA ROBERTS, DECEASED ,

Appellants

V.

GENERAL MOTORS CORPORATION, ROPER MOTOR COMPANY, INC., JIMMY

BANKS, EDWIN DEAN LAWRENCE, and WILL ALLEN LYNCH ,

Appellees

On

Appeal from the 55th District Court

Harris County, Texas

Trial

Court Cause No. 95-57444

O

P I N I O N

Appellant

Berry Roberts appeals from a take-nothing judgment in a products-liability

lawsuit against General Motors Corporation ( A GM @ ). In seven issues,

Roberts claims the trial court erred by (1) granting GM partial summary

judgment based on the statute of limitations on several of Roberts = s

claims and (2) granting GM a no-evidence summary judgment on Roberts = s

remaining claims. We affirm.

I. Factual

and Procedural Background

On

November 24, 1993, Berry Roberts and her mother, Linda, were passengers in a

Pontiac Firebird that collided head-on with a Chevrolet Silverado near

Huntsville, Texas. Although Berry

Roberts sustained only minor injuries, her mother suffered severe injuries and

later died. On November 22, 1995,

Roberts, both in her individual capacity and as representative of the Estate of

Linda Roberts, filed suit against GM, the manufacturer of both the Firebird and

the Silverado. [1] GM was not served, however, until May

1996. The lawsuit asserted claims for

strict products liability, negligence, and breach of express and implied

warranties.

On

April 28, 1997, GM filed a motion for partial summary judgment, contending that

Roberts = s

claims for strict liability and negligence, along with her breach-of-warranty

claim regarding the Silverado, were barred by limitations. GM = s motion for summary judgment was set for submission on June

16, 1997. Roberts did not respond, and

on June 18, the trial court granted the motion.

On July 21, Roberts filed a Motion for New Trial, Reconsideration and

Rehearing in which she (1) offered an explanation for her failure to respond

and (2) set forth her defenses to GM = s motion for summary judgment.

On September 11, 1997, the court signed a second order granting GM = s

motion for summary judgment and denying Roberts = s motion for new trial.

On

September 4, 1997, GM filed a no-evidence motion for summary judgment under

Texas Rule of Civil Procedure 166a(i) against Roberts = s

remaining claims. GM = s

motion was originally set for submission on October 20, 1997. After several resettings, the parties

ultimately agreed on a submission date of March 30, 1998. Six days before submission, on March 24,

Roberts filed a motion for continuance requesting an additional two weeks for

her liability expert to complete an affidavit in response to the summary

judgment motion. GM opposed the motion

for continuance. On March 27, Roberts

filed a reply in support of its motion along with a A Preliminary

Response @

to GM = s

motion for summary judgment. On May 22,

1998, the trial court granted GM = s motion for summary judgment.

The court ultimately entered a final judgment on October 29, 1999,

dismissing all claims against GM with prejudice. This appeal followed.

II. Partial

Summary Judgment B Limitations

In

her fifth, sixth, and seventh issues, Roberts challenges the partial summary

judgment in favor of GM based on the statute of limitations. As the summary judgment movant, GM has the

burden to show that there is no genuine issue of material fact and that it is

entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Nixon

v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-49 (Tex. 1985). We indulge every reasonable inference in

favor of the nonmovant and take all proof favorable to the nonmovant as

true. Science Spectrum, Inc. v.

Martinez , 941 S.W.2d 910, 911 (Tex. 1997); Nixon , 690 S.W.2d at

548-49 .

Actions

for personal injuries, including wrongful-death and survival actions, are

governed by the two-year statute of limitations. Tex.

Civ. Prac. & Rem. Code Ann. ' 16.003 (Vernon Supp. 2002). Roberts = s claims accrued on November 24, 1993, the date of the

accident. Although Roberts filed her

lawsuit on November 22, 1995, barely within the two-year period, GM was not

served until six months later, on May 30, 1996.

In its motion for summary judgment, GM argued Roberts is not entitled to

rely on her filing date for limitations purposes because she did not use diligence

in securing service. The trial court

agreed. Roberts claims she raised issues

of fact concerning (1) whether she exercised due diligence in serving GM and

(2) whether the statute of limitations was tolled because GM fraudulently

concealed Roberts = s claim.

A. Roberts = s Late-Filed Response

We

first address the question of whether we should consider Roberts = s

late-filed response to be part of the summary judgment record that was before

the trial court when it granted summary judgment. GM = s motion for partial summary judgment was set for submission on

June 16, 1997. Roberts did not respond,

and the court granted the motion. One

month later, Roberts filed a A Motion for New Trial, Reconsideration and Rehearing, @

asserting her failure to respond was excused because her counsel had an oral

understanding with GM = s counsel that the submission date would be postponed. Roberts further set forth arguments relating

to the grounds raised by GM in its summary judgment motion. On September 11, the court entered a second

order granting GM = s motion. Because the

court = s

earlier order granting partial summary judgment was interlocutory, the trial

court was free to change or modify it until the judgment became final. See Rush v. Barrios , 56 S.W.3d

88, 98 (Tex. App. C Houston [14th Dist.] 2001, pet. denied). In the text of its September 11 order, the

court also denied Roberts = s motion for new trial, but the court lined through language in

the order that would have denied Roberts = s request for A Reconsideration and Rehearing @ of the court = s earlier summary judgment. [2] We therefore conclude that the trial court

considered Roberts = s late-filed response in ruling on GM = s

motion for summary judgment. [3] Accordingly, we will review Roberts = s

response as part of the summary judgment record.

B. Due Diligence

In

her fifth issue, Roberts claims summary judgment was improper because GM did

not establish the absence of a fact issue as to her diligence in issuing

service. To A bring

suit @

within the statute of limitations, a plaintiff must not only file suit within

the applicable limitations period but must also use diligence to have the

defendant served with process. Gant

v. DeLeon , 786 S.W.2d 259, 260 (Tex. 1990) (per curiam). The date of service relates back to the date

of filing only if the plaintiff exercises diligence in effecting service. Id.

The summary judgment evidence conclusively shows Roberts did not

diligently pursue service on GM, but rather intentionally delayed serving GM

until after she obtained service on other defendants. In an affidavit attached to Roberts = s

summary judgment response, the office manager for Roberts = s

counsel admits Roberts made a tactical decision to serve the in-state

defendants first to prevent GM from removing the case to federal court. However, once the limitations period has

passed, a plaintiff must use due diligence to procure service on the defendant

regardless of any reasons she may have for not wanting to do so. Broom v. MacMaster , 992 S.W.2d 659,

665 (Tex. App. C Dallas 1999, no pet.).

To hold otherwise would eviscerate the long-established due-diligence

requirement and would ignore the goal of statutes of limitations to inform

defendants in a timely fashion of claims against them. Id. ; see also Burnett v. New

York Cent. R.R. Co. , 380 U.S. 424, 428 , 85 S. Ct. 1050, 1054 (1965) ( A Statutes

of limitations are primarily designed to assure fairness to defendants. . .

. [E]ven if one has a just claim it is

unjust not to put the adversary on notice to defend within the period of

limitation . . . . @ ). We overrule Roberts = s

fifth issue.

C. Fraudulent Concealment

In

her sixth issue, Roberts asserts she raised a fact issue regarding the doctrine

of fraudulent concealment. Under this

doctrine, a defendant is estopped from relying on the statute of limitations

when the defendant fraudulently conceals the existence of a claim from a

plaintiff to whom the defendant is under a duty to make such a disclosure. Borderlon v. Peck , 661 S.W.2d 907, 908

(Tex. 1983). To toll limitations under

the doctrine of fraudulent concealment, a plaintiff must show the defendant (1)

actually knew a wrong occurred, (2) had a fixed purpose to conceal the wrong,

and (3) did conceal the wrong from the plaintiff. Shah v. Moss , 67 S.W.3d 836, 841 (Tex.

2001). To avoid summary judgment on

limitations, Roberts must raise a fact issue to support her

fraudulent-concealment assertion. Id.

We

conclude fraudulent concealment does not apply in this case because GM was

under no legal duty to disclose the existence of a cause of action to

Roberts. Without a fiduciary

relationship between the parties in this case, no such duty exists. See Seibert v. General Motors Corp. ,

853 S.W.2d 773, 778 (Tex. App. C Houston [14th Dist.] 1993, no writ). Even if, as Roberts asserts, GM had a duty to

inform its customers of certain dangers regarding its seat belts, this duty to

warn is unrelated to any duty to disclose Roberts = s claims. See id. Because Roberts failed to demonstrate a duty

to disclose exists, she cannot rely on the doctrine of fraudulent

concealment. We overrule Roberts = s

sixth issue.

D. Motion for New Trial

In

her seventh issue, Roberts complains the trial court should have applied the

equitable test set forth in Craddock v. Sunshine Bus Lines, Inc. , 134

Tex. 388 , 133 S.W.2d 124 (1939), and granted her motion for rehearing or new

trial. In Medina v. Western Waste

Industries , this court applied Craddock to a motion for new trial

following the granting of an unopposed motion for summary judgment. 959 S.W.2d 328, 330-31 (Tex. App. C Houston

[14th Dist.] 1997, pet. denied).

Recently, the Texas Supreme Court expressly rejected the use of Craddock

in this context, at least where the nonmovant had notice of the hearing and an

opportunity to request either a continuance or leave to file an untimely

response. See Carpenter v. Cimarron

Hydrocarbons Corp. , 45 Tex. Sup. Ct. J. 1031 , 1033, 2001 WL 1902793 , at *3

(July 3, 2002). Regardless of whether Carpenter

would be controlling under these facts, the trial court considered Roberts = s

late-filed response before entering a partial summary judgment order on

September 11, 1997. Therefore, because

GM = s

motion for partial summary judgment on limitations was not unopposed, Craddock

does not apply.

Instead,

we review the trial court = s denial of Roberts = s motion for new trial for an abuse of discretion. See Superior Packing, Inc. v.

Worldwide Leasing & Fin., Inc. , 880 S.W.2d 67, 71 (Tex. App. C Houston

[14th Dist.] 1994, writ denied). A trial

court abuses its discretion when its ruling is arbitrary, unreasonable, or

without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt , 24 S.W.3d

357, 360 (Tex. 2000) (per curiam).

Roberts = s only argument is that the trial court failed to apply the Craddock

standard when ruling on her motion for new trial. Because Craddock is inapplicable, we

find no abuse of the trial court = s discretion. Roberts = s

seventh issue is overruled.

III. No-Evidence

Summary Judgment

Next,

Roberts raises four issues regarding the granting of a no-evidence summary

judgment. GM filed a motion for summary

judgment under Rule 166a(i) on September 4, 1997, against Roberts = s

claims for breach of express and implied warranties relating to the purchase of

the Firebird. GM argued there was no

evidence raising a genuine issue of material fact on the elements of (1)

existence of a defect and (2) causation.

After several agreed resettings, the motion was eventually set for

submission on March 30, 1998. On March

24, Roberts filed a motion for continuance requesting a two-week delay of the

March 30 submission date, which GM opposed.

Roberts filed a reply in support of her motion and a A Preliminary

Response @

to GM = s

motion for summary judgment. Attached to

this filing was an affidavit from Stephen M. Arndt, Roberts = s

expert, describing documents he needed to complete his affidavit in response to

GM = s

motion and offering a A preliminary opinion . . . about the death of Ms.

Linda Roberts. @ On May 22, 1998, the

trial court granted summary judgment in favor of GM. Roberts contends (1) the trial court erred in

refusing to grant her motion for continuance with respect to the March 30

submission date, (2) Roberts presented sufficient evidence on the elements of

her claim, (3) the trial court erred in refusing to grant her motion for

rehearing, and (4) Rule 166a(i) is unconstitutional as applied in this case.

A. Motion for Continuance

In

her first issue, Roberts claims the trial court erred in refusing to grant a

continuance of the March 30 submission date.

The granting or denial of a motion for continuance is within the trial

court = s

sound discretion, and we will not disturb the court = s

action on appeal unless the record discloses a clear abuse of that

discretion. Villegas v. Carter ,

711 S.W.2d 624, 626 (Tex. 1986). Roberts

advances several arguments why her motion for continuance should have been

granted. However, A [t]he

test for abuse of discretion is not whether, in the opinion of the reviewing

court, the facts present an appropriate case for the trial court = s

action. Rather, it is a question of

whether the court acted without reference to any guiding rules and principles. @ Downer v. Aquamarine Operators, Inc. ,

701 S.W.2d 238, 241-42 (Tex. 1985).

Accordingly, we review Roberts = s arguments not to determine if we would have ruled

differently, but to determine if the trial court = s ruling was arbitrary or unreasonable. See id. at 242 .

Roberts

first contends a no-evidence motion should never be heard as long as discovery

has not been completed. However, Rule

166a(i) does not require that discovery must have been completed, only that

there was A adequate time. @ Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v.

Fuqua , 29 S.W.3d 140, 145 (Tex. App. C Houston [14th Dist.] 2000, pet. denied). Trial courts have discretion to determine

whether there has been adequate time for discovery in a particular case. See id. The adequacy of the time for discovery is

determined by A the nature of the cause of action, the nature of the evidence

necessary to controvert the no-evidence motion, and the length of time the case

had been active in the trial court. @ Id. By the time GM = s motion for summary judgment was submitted, Roberts = s

lawsuit had been on file for well over two years, and the motion itself had

been on file for nearly seven months.

There is no indication Roberts did not have adequate time to discover

facts relating to the existence of a defect and whether a defect caused Linda

Roberts = s

injuries. The trial court did not abuse

its discretion in concluding an adequate time for discovery had passed.

Next,

Roberts claims because this was her A first @ motion for continuance, the trial court abused its discretion

by not granting it. We recognize that

other courts have concluded a court = s discretion is somewhat limited with respect to a party = s

first motion for continuance, particularly when the facts supporting the motion

are not controverted. See, e.g. , Verkin

v. Southwest Ctr. One, Ltd. , 784 S.W.2d 92, 94 (Tex. App. C Houston

[1st Dist.] 1989, writ denied). Even if

we were to adopt a similar rule, however, Roberts = s motion is undeniably not her first motion for

continuance. GM = s

motion for summary judgment was originally set for submission on October 20,

1997. Roberts filed at least two motions

for continuance before the motion for continuance that is the subject of this

appeal. Each time, the parties agreed to

continue the submission date, and the motion was ultimately set for submission

on March 30, 1998. We conclude Roberts

is not entitled to special treatment of her motion for continuance as a A first @

motion.

Roberts

asserts she has an absolute right to additional discovery. While a party has a right to conduct

discovery, that right is not unlimited. See

Able Supply Co. v. Moye , 898 S.W.2d 766, 773 (Tex. 1995) ( A Both

the plaintiffs and the defendants are entitled to full, fair discovery within

a reasonable period of time . . . . @ ) (emphasis added). For

example, a motion for continuance seeking additional time for discovery must,

among other things, describe the evidence sought, explain its materiality, and

show the party requesting the continuance has used due diligence to obtain the

evidence. Tex. R. Civ. P. 252; Grace v. Duke , 54 S.W.3d 338, 343

(Tex. App. C Austin 2001, pet. denied).

Roberts failed to show that the additional discovery she sought was

material to the issues raised by GM = s no-evidence motion for summary judgment.

None

of the other reasons advanced by Roberts suggest the trial court abused its

discretion by denying her motion for continuance. The occasional absence of Roberts = s

counsel during the time leading up to the date of submission, even if

uncontroverted, does not require the granting of a continuance. Cf. Tex.

R. Civ. P. 253 (stating that absence of counsel is not good cause for a

continuance of a case that has been called to trial). The fact that Roberts requested only a short

continuance does not deprive the trial court of its discretion in ruling on

Roberts = s

motion, particularly considering the history of the case and the numerous

continuances and resettings that preceded the motion. Finally, while a court may consider lack of

prejudice to the opposing party in ruling on a motion for continuance, it is

not the other party = s burden to establish an absence of prejudice before the court

may deny the motion.

We

conclude the trial court did not clearly abuse its discretion by refusing to

grant Roberts = s motion for continuance.

Accordingly, we overrule Roberts = s first issue.

B. Did Roberts Raise a Fact Issue?

In

her second issue, Roberts claims the trial court erred in granting a

no-evidence summary judgment in the face of her A Preliminary Response @ to GM = s motion. GM initially

contends this evidence should not be considered part of the summary judgment

record because the rules require the nonmovant to file affidavits or other

written response no later than seven days before the hearing, A [e]xcept

on leave of court. @ Tex. R. Civ. P. 166a(c).

Although the motion was set for submission on March 30, 1998, Roberts

did not file her response until March 27.

GM claims the record does not show the court gave Roberts leave to file

her response only three days before the submission date. We note, however, the trial court = s

docket sheet contains an entry stating: A [Plaintiff] = s Mot[ion] for 2 weeks cont.: Granted until April 13, 1998. @ [4] We believe this docket

entry, dated the same day the court granted GM = s motion for summary judgment, indicates A leave

of court @

was, in fact, given to file Roberts = s March 27 response as part of the summary judgment record.

Roberts

claims the evidence she presented with her March 27 response precluded summary

judgment for GM. When reviewing the

grant of a no-evidence summary judgment, we review the evidence in the light

most favorable to the nonmovant and disregard all evidence and inferences to

the contrary. Lampasas v. Spring

Ctr., Inc. , 988 S.W.2d 428, 432 (Tex. App. C Houston [14th Dist.] 1999, no pet.). A no‑evidence summary judgment is

improperly granted if the nonmovant counters with more than a scintilla of

probative evidence to raise a genuine issue of material fact. Id.

More than a scintilla of evidence exists when the evidence A rises

to a level that would enable reasonable and fair‑minded people to differ

in their conclusions. @ Merrell Dow Pharms.,

Inc. v. Havner , 953 S.W.2d 706, 711 (Tex.1997) (quoting Transportation

Ins. Co. v. Moriel , 879 S.W.2d 10, 25 (Tex.1994)).

In

her March 27 response, Roberts pointed to the following as evidence that

created a fact issue, precluding summary judgment: (1) the affidavit of Stephen

M. Arndt, Roberts = s expert on accident reconstruction; (2) Roberts = s

deposition; and (3) the documents referred to by Arndt. With respect to Roberts = s

deposition, we note the record does not reflect that a copy of this deposition

was filed along with Roberts = s March 27 response or at any time before the submission date

of March 30. Even if it were, Roberts

did not direct the trial court to any excerpts or portions of the deposition

that might establish facts supporting the existence of a defect or causation. Thus, Roberts = s deposition did not raise an issue of material fact on either

element. See Walton v. City of

Midland , 24 S.W.3d 853, 858 (Tex. App. C El Paso 2000, no pet.) (finding summary judgment was proper

where nonmovant attached some 500 pages of depositions and other evidence to

his response without directing the court to specific evidence raising a fact

issue).

We

next look to Stephen Arndt = s affidavit, which was attached to Roberts = s

March 27 response. In his affidavit,

Arndt expresses the following A preliminary opinion @ about Linda Roberts = s death:

Based upon reasonable scientific, engineering certainty, it is

my opinion that Ms. Roberts received fatal injuries in such crash at least in

part because of how the restraint system fit her. Ms. Linda Roberts, who was a short adult,

being only 5 feet 2 inch tall, had her lap/shoulder restraint on at the time of

the crash, as she sat in the left-rear seat.

Ms. Roberts received fatal injuries to her chest, stomach and neck,

which are consistent with a poor fitting restraint. These types of injuries can occur if the

restraint system is not designed to route over the body in a manner that keeps

the lap belt on the pelvis and the shoulder harness over the shoulder and off

the neck. A proper fitting restraint for

short statured adults can be achieved by the correct positioning of the lap

belt anchor points and providing an ability to adjust the shoulder harness

routing to achieve proper fit for a range of occupant sitting heights.

We

conclude this affidavit does not present probative evidence of the existence of

a defect or causation. According to

Arndt, Linda Roberts = s injuries A are consistent with @ a poor-fitting restraint system, and similar injuries can be

caused by a poorly designed restraint.

However, it does not logically follow, and Arndt = s

affidavit does not establish, that Linda Roberts = s restraint system fit poorly because it was designed

poorly. While a plaintiff can establish

the existence of a defect using circumstantial evidence, there must be evidence

of proper use of the goods together with a malfunction. See Plas-Tex, Inc. v. U.S. Steel

Corp. , 772 S.W.2d 442, 444-45 (Tex. 1989).

Because Roberts failed to present any summary judgment evidence that

Linda Roberts used her restraint system properly, she has not raised a fact

issue concerning the existence of a defect.

See id. at 444 .

Furthermore, because Arndt attributed Linda Roberts = s

injuries to a poor-fitting restraint system, he failed to provide any causal

link between her injuries and a defectively designed restraint system.

Finally,

Roberts claims A the documents referred to by Mr. Arndt @

created a fact issue as to liability and causation. In his affidavit, Arndt stated he reviewed A preliminary

photographs, the police report, medical records, death certificate, certain

[GM] documents, excerpts from the Owner = s Manual, the deposition of Berry Roberts, and other

information concerning [the Firebird]. @ However, of these

documents, the only ones that appear in the record as attachments to Roberts = s

March 27 response are the two-page police report of the accident and Linda

Roberts = s

death certificate. Neither of these

documents provide any evidence that the Firebird = s restraint system was defective or that this alleged defect

caused Linda Roberts = s injuries.

Roberts

contends we should also consider the summary judgment evidence she filed on May

22, 1998, the same day the trial court granted summary judgment, as well as

evidence she submitted in connection with her motion for rehearing and in

opposition to a summary judgment motion filed by GM = s

co-defendant. It is undisputed that none

of this evidence was on file on March 30, the submission date for GM = s

motion. In ruling on a motion for

summary judgment, the trial court may only consider evidence A on

file at the time of the hearing, or filed thereafter and before judgment with

permission of the court. @ Tex. R. Civ. P. 166a(c).

There is nothing in the record to indicate the trial court gave Roberts

permission to file this evidence in response to GM = s

motion. A trial court does not abuse its

discretion by refusing to consider summary judgment evidence filed after the

date for submission. See Abdel-Fattah

v. PepsiCo, Inc. , 948 S.W.2d 381, 385 (Tex. App. C Houston

[14th Dist.] 1997, no writ).

We

conclude the trial court properly refused to consider any evidence filed by

Roberts after the submission date on GM = s motion for summary judgment.

Even considering the summary judgment evidence Roberts submitted just

three days before the March 30 submission date, Roberts did not raise a fact

issue as to the existence of a defect and causation, two essential elements of

her breach-of-warranty claims.

Accordingly, we overrule Roberts = s second issue.

C. Motion for New Trial

In her third issue, Roberts asserts the trial court erred in

refusing to grant a rehearing and new trial after the granting of the

no-evidence summary judgment in favor of GM.

Roberts = s sole argument is that she is entitled to a rehearing or new

trial under the Craddock test because she acted in good faith, her

failure to file a timely evidentiary response was not the result of conscious

indifference, and the granting of a rehearing or new trial would occasion no

delay or otherwise work an injury to GM.

See Craddock , 133 S.W.2d at 126 . As we note above, however, our supreme court

has recently held Craddock does not apply to a motion for new trial

following a summary judgment when the nonmovant had an opportunity to request

either leave to file a late response or a continuance. See Carpenter , 45 Tex. Sup. Ct.

J. at 1033. Here, Roberts clearly had

notice of the March 30 submission date and, in fact, filed a motion for

continuance in advance of that date.

Accordingly, Craddock does not apply to Roberts = s

motion for new trial following the no-evidence summary judgment. Instead, we review the trial court = s

ruling for an abuse of discretion. See

Superior Packing, Inc. , 880 S.W.2d at 71 . Roberts = s argument only addresses the trial court = s

failure to apply Craddock , and she presents nothing to suggest the trial

court otherwise abused its discretion.

We overrule Roberts = s third issue.

D. Constitutional Claims

Finally,

Roberts contends in her fourth issue the no-evidence summary judgment rule, as

applied to her claims, violates the following provisions of the Texas

Constitution: the open-courts provision, Tex.

Const. art. I, ' 13; the right to trial by jury, Tex. Const. art. I, ' 15; and the due-course-of-law provision, Tex. Const. art. I, '

19. For various reasons, we reject

Roberts = s

constitutional challenges.

1. Open Courts

Roberts claims Rule 166a(i) violates the open-courts provision in

article I, section 13 of the Texas Constitution. [5] For this provision to apply, however, Roberts

must (1) have a cognizable common-law claim that is being restricted and (2)

show that the restriction is unreasonable or arbitrary when balanced against

the statute = s purpose. See Horizon/CMS

Healthcare Corp. v. Auld , 34 S.W.3d 887, 902-03 (Tex. 2000). As Roberts admits in her brief, the only

claims remaining in the suit are for wrongful death and survival damages. These actions are permitted only by statute,

and thus Roberts has no common-law right to bring them. See Bala v. Maxwell , 909 S.W.2d

889, 893 (Tex. 1995) (per curiam).

Accordingly, Roberts cannot establish an open-courts violation. See id.

2. Trial by Jury

Roberts

also complains Rule 166a(i) as applied to her claims violates her right to a

trial by jury as set forth in article I, section 15. [6] In civil cases, the constitutional right to a

jury trial is not absolute, but rather is regulated by those rules that specify

its availability. See Green v.

W.E. Grace Mfg. Co. , 422 S.W.2d 723, 725 (Tex. 1968). Although not clearly articulated in her

brief, Roberts apparently contends she was improperly subjected to a A trial

by affidavit @ in the place of a jury trial.

Under Rule 166a(i), after adequate time for discovery, the court can

grant summary judgment against a party that fails to produce summary judgment

evidence raising a genuine issue of material fact on one or more essential elements

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

To avoid summary judgment, the nonmovant is not required to marshal its

proof; rather, its response need only point out evidence that raises a fact

issue on the contested elements. Tex. R. Civ. P. 166a cmt. In the absence of a material fact issue,

there is nothing to submit to a jury, and the granting of summary judgment does

not deprive the losing party of its constitutional right to a jury trial. Lattrell v. Chrysler Corp. , 79 S.W.3d

141, 150 (Tex. App. C Texarkana 2002, no pet. h.); Carrabba v. Employers Cas. Co. ,

742 S.W.2d 709, 716-17 (Tex. App. C Houston [14th Dist.] 1987, no writ); see also Macklin

v. City of New Orleans , 293 F.3d 237, 241 (5th Cir. 2002) (per curiam)

(describing as A patently frivolous @ a claim that summary judgment proceedings conflict with the

constitutional right to trial by jury); Nathan L. Hecht, Opening Remarks to

Symposium on Emerging Professional Responsibility Issues in Litigation , 41 S. Tex. L. Rev. 3 , 4 (1999) (noting

that Texas = s adoption of the no-evidence summary judgment rule A brings

Texas in line with the practices of the federal courts @ ). The trial court = s application of Rule 166a(i) did not violate Roberts = s

right to trial by jury.

3. Due Course of Law

Finally,

Roberts asserts the trial court = s application of Rule 166a(i) violated the constitution = s

due-course-of-law provision. [7] Roberts relies on Clem v. Evans , 291

S.W. 871 (Tex. Comm = n App. 1927, holding approved), in which the court struck down

a fraud statute in violation of the due-course provision. In Clem , the statute in question

stated that, for certain types of promises, a person who made a promise and

then failed to comply within a reasonable time was presumed to have committed

fraud unless he or she established that non-compliance resulted from A the

act of God, the public enemy or by some equitable reason. @ Id. at 871-72 . The Texas Commission of Appeals held that, by

imposing a presumption of fraud that could only be overcome as specified, the

statute denied those accused of fraud of their right to prove, as a complete

defense, that they had no intent to defraud when the promise was made. Id. at 872 . Roberts claims the no-evidence summary

judgment rule deprived her of a fair and reasonable opportunity to rebut the A unfair

and overly burdensome presumption against [her] case. @ Unlike the statute in Clem , however,

Rule 166a(i) imposes no presumption against Roberts, nor does it deny her any

rights with respect to her claims, on which she bears the burden of proof. Roberts asserts only that Rule 166a(i)

subjected her to a A trial by affidavit. @ However, Rule 166a(i)

does not require the nonmoving party to establish its right to relief, but

merely present summary judgment evidence sufficient to raise a fact issue. Roberts has failed to establish a violation

of article I, section 19.

We

conclude that Rule 166a(i), as applied to Roberts = s claims, does not violate the open-courts, trial-by-jury, or

due-course provisions of the Texas Constitution. We overrule Roberts = s

fourth issue.

IV. Conclusion

Finding

no error in either summary judgment granted by the trial court, we affirm the

court = s

judgment.

/s/ Joe

L. Draughn

Senior Justice

Judgment rendered and Opinion filed August

22, 2002.

Panel consists of Justices Seymore and

Guzman and Senior Justice Draughn. [8]

Do Not Publish C

Tex. R. App. P. 47.3(b).

[1] Joining

Roberts as a plaintiff in the trial court was Charles Finley Miller, another

passenger in the Firebird. In addition

to GM, the lawsuit named as defendants Edwin Dean Lawrence, the driver of the

Firebird; Will Allen Lynch, the driver of the Silverado; Jimmy Banks, the

driver of a car the Firebird was allegedly attempting to pass at the time of

the accident; and Roper Motor Company, Inc., the company that sold the Firebird

to Berry Roberts = s father. Only

Roberts and GM are parties to this appeal.

[2] The September

11 order reads as follows:

ON THIS DAY came on to be heard [GM = s] Motion for Partial Summary Judgment and Brief in

Support Thereof, and Plaintiff = s Motion for New Trial, Reconsideration and Rehearing

with Regard to Partial Summary Judgment Granted in Favor of [GM], and the Court

. . . finds that GM = s Motion for Partial Summary Judgment should be, in

all things GRANTED and Plaintiff = s Motion

for New Trial, Reconsideration and Rehearing with Regard to Partial

Summary Judgment Granted in Favor of [GM] should be in all things DENIED; and,

it is therefore accordingly,

ORDERED, ADJUDGED and DECREED, that GM = s Motion for Partial Summary Judgment be and the same

is hereby GRANTED in its entirety, that judgment is hereby entered in favor of

GM as to all of Plaintiffs = strict liability and negligence claims, as to all of

Plaintiffs = claims based on breach of implied and express

warranties regarding [the Silverado] . . . , [and] that Plaintiffs take nothing

against GM regarding these claims . . . .

It is further ORDERED, ADJUDGED and DECREED, that and [ sic ]

Plaintiff = s Motion for New Trial, Reconsideration and

Rehearing with Regard to Partial Summary Judgment Granted in Favor of [GM]

be and the same is hereby DENIED in its entirety.

[3] Our conclusion

is bolstered by an entry on the court = s docket

sheet stating A [Plaintiff] = s

Mot[ion] for Reconsideration: Granted. @ The trial court apparently never signed an

order ruling on Roberts = s motion for reconsideration. We recognize a docket entry cannot take the

place of a court order. See Pickell

v. Guaranty Nat = l Life Ins. Co. ,

917 S.W.2d 439, 441 (Tex. App. C Houston [14th Dist.] 1996, no writ). However, a docket entry may supply facts for

our consideration, provided the entry does not contradict a judicial

order. See N-S-W Corp. v.

Snell , 561 S.W.2d 798, 799 (Tex. 1977).

Here, the docket entry supports our conclusion that the trial court

considered Roberts = s late-filed response before granting partial summary

judgment on September 11, 1997.

[4] Despite this

notation, no order appears in the record granting Roberts = s motion for continuance. The court = s docket

entry cannot take the place of such an order.

Pickell , 917 S.W.2d at 441 .

[5] A All courts shall be open, and every person for an

injury done him, in his lands, goods, person or reputation, shall have remedy

by due course of law. @ Tex. Const. art. I, ' 13.

[6] A The right of trial by jury shall remain inviolate. @ Tex. Const. art. I, ' 15.

[7] A No citizen of this State shall be deprived of life,

liberty, property, privileges or immunities, or in any manner disfranchised,

except by the due course of the law of the land. @ Tex.

Const. art. I, ' 19.

[8] Senior Justice

Joe L. Draughn sitting by assignment.