AFFIRM; Opinion Filed October 31, 2013. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 12
- 01169
- CV JAMES PHELPS , Appellant V. CLARENCE EDSALL AND MID SOUTH TRANSPORT, INC. , Appellees On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC
- 10
- 07686 

### MEMORANDUM OPINION Before Justices O'Neill, Lang

- Miers, and Evans Opinion by Justice Evans
James Phelps appeals from a no - evid ence summary judgment entered in favo r of Clarence Edsall and Mid So uth Transport, Inc

. On appeal, Phelps contends the trial court erred in granting appellees’ no - evidence summary judgment motion because there was sufficient evidence in the trial court re cord to create fact issues concerning his negligence claims

. We affirm

. BACKGROUND On November 3, 2008, Efrain Garcia’s vehicle and an 18

- wheeler operated by Edsall , a Mid South employee, collided on a highway. Following this initial collision, Garcia’s vehicle struck Phelps’ s vehicle. After the vehicles came to rest, Phelps exited his vehicle to check on the– 2

– occupants of Garcia’s vehicle. While walking back to his vehicle to retrieve h is cell phone, Phelps was struck by a vehicle driven by Juan Teniente. Both Phelps and Julio D. Rascon , a passenger in Garcia’s vehicle, filed separate lawsuits against numerous parties, including Edsall and Mid South, for injuries sustained in the acciden t

. Rascon’s case was subsequently consolidated with Phelps’ s case. Appellees filed a traditional motion for summary judgment on Rascon’s negligence claims. Rascon’s response included an affidavit, deposition testimony and other evidence in support of his response

. T he trial c ourt denied the motion. Appellees then moved for summary judgment asserting both traditional and

no - evidence grounds as to Phelps’s negligence claims

. Among other things , Mid South and Edsall argue d that Phelps failed to produce any evidence that : (1) his injuries were proximately caused by Edsall; (2) Edsall breached any duty owed to Phelps; and (3) Edsall failed to keep a proper lookout, apply brakes, maintain control over his vehicle and maintain a single lane of travel. Phe lps responded to the traditional summary judgment grounds but failed to respond to the no

- evidence grounds

. T he only evidence attached to Phelps’s response consisted of two pages of his deposition testimony in which Phelps detailed his actions after the f irst accident

. T he trial court signed an order granting appellees’ no - evidence motion for summary judgment

. Phelps brings this appeal. 1
ANALYSIS
I. Standard of Review Once a party moves for summary judgment on the ground that no evidence exists to support one or more essential elements of a claim or defense, the non

- movant must produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements to

1 Rascon settled his claims with Mid

- South and Edsall and nonsuited these parties. The trial court later dismissed the case for want of prosecution as to the remaining claims.– 3

– defeat the motion. T EX
. R. C IV
. P. 166a(i); Forbes Inc. v. Granada Biosciences, Inc. , 124 S.W.3d 167, 172 (T ex. 2003). More than a scintilla of evidence exists when the evidence “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)

. The same legal sufficiency standard is applied in a no

- evidence summary judgment as is applied in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750

- 51 (Tex. 2003). Accordingly, the evidence is re viewed in the light most favorable to the non

movant, disregarding all contrary evidence and inferences. Id

. at 751.
II. No Evidence of Negligence In his sole issue, Phelps contends that the t rial court erred in granting appellees’ no evidence summary judgme nt motion because the trial court record included sufficient evidence to create fact issues concerning breach of duty and proximate cause. It is undisputed, however, that Phelps failed to identify this evidence in his response. Instead, Phelps argues tha t because the trial court had previously reviewed evidence Rascon submitted in response to appellees’ summary judgment motion against him , the court should have applied the same evidence to appellant’s case and denied summary judgment . We disagree. Rule 1 66a(i) explicitly provides that in response to a no

- evidence summary judgment motion, the respondent must present some summary judgment evidence raising a genuine issue of material fact on the element attacked, or the motion must be granted. Although in h is response to the traditional motion for summary judgment Phelps requested the trial court to “ take judicial notice of all pleadings and motions filed in this case ,” o rdinarily a trial court is not required to search the record without guidance from a party directing the trial court to specific evidence in the record

. See Rogers v. Ricane Enters. , Inc. , 772 S.W.2d 76, 81 (Tex.1989) (general references to voluminous record d id not direct trial court to evidence on which party– 4

– relied ) ; Shelton v. Sargent , 144 S.W.3d 113, 120 (Tex. App.

— Fort Worth 2004, pet. denied) (request that trial court take judicial notice of “the Court ’ s file ” insufficient to guide trial court to specific evidence relied upon) ; Guthrie v. Suiter , 934 S.W.2d 820, 826 (Tex. Ap p.

— Houston [1st Dist.] 1996, no writ) (trial court not obligated to search entire deposition attached to summary judgment response)

. Phelps did not meet this burden mere ly because the evidence exists in the trial court’s file then citing for the first tim e on appeal the specific evidence he failed to point out to the trial court

. Saenz v. Southern Union Gas Co., 999 S.W.2d 490, 494 (Tex. App.

— El Paso 1999, pet. denied) (holding that respondent failed to meet burden by the mere existence in the trial court ’s file of a response to an earlier summary judgment motion ); Fears v. Texas Bank, 247 S.W.3d 729, 734

- 3 5 (Tex. App.

— Texarkana 2008, pet. denied ) ( same )

. Accordingly, w e conclude the trial court did not err when it granted appellees’ no

- evidence summary judgment. CONCLUSION
We resolve appellant’s sole issue against him and affirm the trial court’s order.

/David Evans/ DAVID EVANS JUSTICE 121169F.P05– 5

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JAMES PHELPS, Appellant No. 05

- 12

- 01169

- CV V. CLARENCE EDSALL AND MID SOUTH TRANSPORT, INC., Appellees On Appeal from the County Court at Law No. 4, Dallas County, Texas Trial Court Cause No. CC

- 10

- 07686. Opinion deli vered by Justice Evans. Justices O'Neill and Lang

- Miers participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellees CLARENCE EDSALL AND MID SOUTH TRANSPORT, INC. recov er their costs of this appeal from appellant JAMES PHELPS.
Judgment entered this 31st day of October, 2013.

/David Evans/ DAVID EVANS JUSTICE