Opinion issued July 24 , 2014

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 13
- 00404
- CV

——————————— BONNIE JOHNSON, INDI VIDUALLY AND AS REPR ESENTATIVE OF THE ESTATE OF JALEN JOHNSO N, AND ANTHONY JOHNSON , Appellant s V. VYJU RAM , M.D. AN D MICHAEL J. BISHOP, M.D., P.A. D/B/A GRAND

PARKWAY PEDIATRICS, Appellee s
On Appeal from the 295 th District Court

Harris County, Texas Trial Court Ca se No. 2009
- 16061

MEMORANDUM OPINION
A ppellant s , Bonnie Johnson, i ndividually a nd as representative of the e state

o f Jalen Johnso n, a nd Anthony Johnson , challenge the trial court’s rendition of summary judgment in favor of appellee s , Vyju Ram, M.D. (“Ram”), and Mich ael2

J. Bishop, M.D., P.A., doing business as Grand Parkway Pediatrics (“GPP”), on their health care liability claim s against Ram and GPP

. In three issues, the Johnsons contend that the trial court’s judgment is not final and it er red in dismiss ing certain of their claims against GPP and granting Ram and GPP summary judgmen t on their remaining claims. We affirm. Background In their second amend ed petition, the Johnsons allege that on January 29, 2007, Mrs. Johnson took their nineteen

- month

- old son, Jalen , to Dr. Ram at GPP for treatment because he had , since the prior day, been running a fever of 104.8 degrees , rubbing his neck, tugging at his ears, and shivering. Du ring Ram’s examination, Jalen had a temperature of 100.5 degrees , “full range of motion” in his neck, and a red throat . A fter testing positive for strep, Ram diagnosed Jalen with strep throa t and sent him home w ith a n antibiotic prescription. Mrs. Johnson

was instructed to increase Jalen ’s fluids and monitor his fever.
T he next day, Mrs. Johnson informed Dr. Ram’s office that Jalen had not improved . Rather , he had “persistent fever, reduced oral intake, decreased urine output, slept the whole day, and started to become letharg ic.” Mrs. Johnson was then instructed t o wait, gi ve the medication time to work , and call back the next day if no improvement was no ted

.3

On January 31, 2007, Mrs. Johnson returned to Dr. Ram’s office with Jalen , reporting that he was showing weakness and stiffness , and he suffered from intermittent shaking. Ram noted that Jalen had a fever of 100.4 degrees and his neck was “stiff,” and she opined that he possibly had meningitis. She administered an antibiotic and instructed Mrs. Johnson to take Jalen to the emergency room at Texas Children’s Hospital (“TCH”). At TCH, Jalen demonstrated “poo r tone” in his extrem ities and an “ altered mental status.” He was diagnosed with bacterial meningitis and admitted into pediatric intensive care . By February 3 , 2007, he had deteriorated neurologically , was having seizures, and was no longer breathing on his own. He died th e next day. The Johnsons bring claims against Dr. Ram and GPP for negligence and gross negligence , alleging that “[a]s a direc t result of the delayed diagnos[i] s and treatment by Dr. Ram, the meningitis had progressed to the point that the physicians at TCH were unable to prevent Jalen ’s death.” The Johnsons allege that Ram i s directly liable for her acts and omissions, and vicariously liable f or the acts and omissions of her staff. They further allege that GPP i s vicariously liable for the acts and om issions of Ram and its staff. Ram and GPP answered, each asserting a general denial.4

The Johnsons served Dr. Ram and GPP with a medical expert report 1 authored by Joseph D. Tobias, M.D

. In his report, as amended, Tobias notes that he is board certified in pediatrics, anesthesiology, pain management, and pediatric critical care management. He has been an attending physician in pediatric intensive care units and has served as chief of pediatric critica l care in several hospital s. Tobias has been an associate professor of pediatrics at several universities, has authored numerous works in pediatric medical books and professional publications, and speaks at seminars and medical schools. Dr. Tobias explains that, based on his edu cation, training, and experience, he is familiar with the standard of care for physicians, including pediatricians, applicable to the evaluation and treatment of children such as Jalen. In his practice of pediatric critical care medicine, he has evaluated several infants with the same or similar condition that Jalen presented in January 2007. And he is familiar with infectious disease processes in children, including bacteremia and meningitis. In his report, Dr. Tobias notes that he reviewed Jalen’s med ical records from
Dr. Ram, GPP, and TCH

. He explains that the applicable standard of care for “any pediatrician, including [Ram], [in] evaluating a nd caring for a child over 3 months but less than 3 years of age with a fever” is to obtain a focused history; perform a thorough physical examination; not rely on a strep test; prescribe antibiotics; util ize

1 See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 74.351(a) (Vernon Supp. 2013).5

appropriate fever protocols; adequately and specifically communicate with the child’s parents rega rding the need to bring the child to a hospital , if the condition worsens; and educate the parents on the specific symptoms that indicate worsening.
B ased on his education, training, and experience, Dr. Tobias opines that Dr.
Ram breached the standard of care by : 1. Failing to perform an adequate evaluation of Jalen Johnson, a 19 month old child with fever on January 29, 2007; 2. [Misdiagnosing] a 19 month old child with strep throat on January 29, 2007 knowing that strep throat in children Jalen’s age is extr emely rare and that he did not have on physical exam the signs and symptoms of strep throat including: fever > 101 [degrees] , bright red throat, difficulty swallowing, drooling in [ a ] young child, swollen enlarged tonsils with white or yellow exudate/patch es noted on the tonsils, swollen lymph nodes in the neck or skin rash; 3. Failing to pr ovide and document in the chart on January 29, 2007 that appropriate follow up instructions were given and thoroughly explained to Mrs. Johnson; 4. Failing to instruct Mrs. Jo hnson on January 29, 2007 to return to the office or take Jalen to an emergency room if his condition worsened, as exhibited by changes in mental status, increased sleepiness, listlessness and lack of energy, decreased oral intake and/or decreased urine ou tput; 5. Fail[ing] to properly educate and stress to Mrs. Johnson on January 29, 2007 the potential significance of worsening condition including changes in mental status including increased sleepiness, listlessness and lack of energy, decreased oral intake and/or decreased urine output; and 6. Prescribing an inappropriate medication on January 29, 2007.6

As to causation, Dr. Tobias opines that “Dr. Ram’s breaches of the standard s of care . . . were a proximate cause of the delay in Jalen Johnson’s diagnoses, treatment, severe neurological injuries, hemodynamic instability and ultimate death on February 4, 2007 .” He further opines that had Jalen been properly assessed and Mrs. Joh nson properly informed, Jalen would have been taken to a hospital on January 30, 2007, where his condition “would have been recognized ” and

“ appropriate antibiotic therapy would have been started before the progression of the disease process from occult ba cteremia to meningitis.” Dr. Ram did not challenge the sufficiency of Dr. Tobias’s amended expert report. GPP moved to dismiss the Johnsons’ claims against it , arguing that the report i s insufficient because it does not mention GPP or the conduct of it s staff

. On October 26, 2009, the trial court granted dismissal as to any direct liability of
GPP , concluding that “nothing was alleged ” against GPP. And it granted dismissal
as to any vi carious liability of GPP regarding any staff other than Ram , concluding that “ the standard of care and the negligence of a staff member was not sufficiently identified , nor was causation established

. ” It denied GPP dismissal as to its vicarious liability for the conduct of Ram. Three years later , Dr. Ram and GPP filed a no

- evidence summary

- judgment motion “on all claims,” asserting that after engaging in discovery for three years, the Johnsons had produced no evidence of the pertinent standard of care, breach, or7

causation to support their negligence claims

. Ram and GPP asserted that after the trial court had granted their motio n to compel the depositions of the Johnsons’ retained experts and ordered them to “produce for oral depositions all [their] retained experts within 21 days,” and the parties further ext ended that dea dline by

a greement, the Johnsons had produced only one expert, Fabio Fernandez, M.D., a pediatric neurol ogist who treated Jalen at TCH. Ram and GPP attached to their
summary - judgment motion an excerpt of Fernandez’s deposition in which he
te stified that he is “ not a primary

- care pediatrician,” he refused to offer any testimony regarding “what . . . Dr. Ram did in her care and treatment” of the child or what she “should or should not do in the care and treatment of a patient,” and he refused t o “talk about or give testimony related to any of the nursing care t hat Jalen received when he was a patient at [GPP].” Ram and GPP argued that they were entitled to summary judgment because the Johnsons’ sole expert had offered no opinions as to liabilit y or causation

. To their summary

-

judgment response, the Johnsons attached as their evidence Dr. Ram’s and GPP’s original answers and the trial court’s dismissal order. And they quoted in the body of their response Dr. Tobias’ s expert report

. After a hea ring , the trial court granted Dr. Ram and GPP summary judgment, ordering that the Johnsons take nothing on their claims

.8 Jurisdiction In their third issue, the Johnsons argue that this Court lacks jurisdiction to review the trial court’s summary judgment because it “did not dispose of all claims for direct and vicarious liability against all parties, and, therefore, [it is] not final.”
The Johnsons als o assert that the j udgment is “non

- specific as to which parties and claims it purportedly addresses.” Generally , we have jurisdiction to revie w final and definite judgments. See Hinde v. Hinde , 701 S.W.2d 637, 639 (Tex. 1985). A judgment is final “if it disposes of all pe nding parties and claims in the record.” Lehmann v. Har

- Con Corp ., 39 S.W.3d 191, 195 (Tex. 2001). “A judgment that actually disposes of every remaining issue in a case is not interlocutory merely because it recites that it is partial or refers to only s ome of the parties or claims.” Id. at 200. In their original petition, the Johnsons asserted claims against Dr. Ram and GPP for negligence and gross negligence. They later amended their petition, adding claims against Jean Bryant, M.D., Michael J. Bish op, M.D., and Michael J. Bishop, M.D., P.A. In their second amended petition, however, the Johnsons list only Ram and GPP as defendant s, and they non

- suited Bryant, Bishop , and Michael J. Bishop, M.D., P.A. They assert claims against Ram for dir ect liabi lity ; assert that Ram i s vicariously liable for the conduct of her staff ; and assert that GPP i s vicariously liable for the actions of Ram and its staff. After the trial court’s9

October 26, 2009 dismissal order, the Johnsons’ only remaining claims a re for direct liability as to the acts and omissions of Ram, vicar ious liability as to Ram f or the acts and omissions of her staff, and vicarious liability as to GPP for the acts and omissions of Ram. As discussed below, we conclude that the tr ial court’s s ummary - judgment order disposed of the remaining claims . Accordingly, w e hold that the trial court’s
summary judgme nt constitutes a final judgment. See Lehmann , 39 S.W.3d at 195; Noorian v. McCandless , 37 S.W.3d 170, 173 (Tex. App.

— Houston [1st Dis t.] 200 1, pet. denied) (“[A] final judgment may consist of several orders that cumulatively dispose of all parties and issues .” ); see also Roccaforte v. Jefferson Cnty

. , 341 S.W.3d 919, 924 (Tex. 2011) (stating trial court’s prior interlocutory orders merge into final judgment). We overrule the Johnsons ’ third issue.

Summary Judgment In their second issue, the Johnsons argue that the trial court erred in granting
Dr. Ram and GPP summary judgment because “Michael J. Bishop, M.D., P.A. d/b/a Grand Parkway Pediatrics” is not a named defendant in this suit. Th ey further argue that the case should be remanded “as to the vicarious liability against Dr. Ram” because the summary

- judgment motion and order failed to address this claim.10

After a n adequate time for discovery, the party without the burden of proof may move for summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an essential element of the non

- moving party’s claim. T EX
. R. C IV
. P. 166a(i); Johnson v. Brewer & Pritchard, P.C ., 73 S.W.3d 193, 207 (Tex. 2002). The movant must specifically state the element as to which there is no evidence. T EX
. R. C IV
. P. 166a(i). The burden then shifts to the

non - movant to produce evidence that ra ises a fact issue on the challenged element.
See Johnson , 73 S.W.3d at 207. To defeat a no

- evidence motion, “the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. ” T EX
. R. C IV
. P. 166a(i) cmt. We will sustain a no evidence point if (1 ) there is a complete absence of evidence of a vital fact, (2 ) the court is barred by rules of law or of evidence from giving weight to the only evidence

o ffered to prove a vital fact, (3 ) the evidence offered to prove a vital fact is no more than a mere scintill a, or (4 ) the evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). When determining if more tha n a scintilla of evidence has been produced, the evidence must be viewed in the light most favorable to the non

- movant. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004). More than a scintilla exists when the evidence “ ‘r ises to a level that wou ld enable reasonable and fair

-11

minded people to differ in their conclusions. ’ ” Id. (quoting Merrell Dow Pharm.,
Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). Conversely , “ ‘ [ w]hen the evidence offered to prove a vital fact is so weak as to do no more th an create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. ’ ” Id

. (quoting Kindred v. Con/Chem, Inc ., 650 S.W.2d 61, 63 (Tex. 1983) )

. Here, Dr. Ram and GPP filed a “No

- Evidence Moti on for Summary Judgment ” as to “all clai ms” against them . In their motion, they specifically address ed the direct liability of Ram and the vicarious liability of GPP for the acts and omissions of Ram. Ram and GPP assert ed that although the parties had engaged in discovery for three years, the Johnsons had not produced any evidence of the standard of care, “a breach of that standard by Dr. Ram,” or causation. They

assert ed that after the trial court had granted their motion to compel th e depositions of the Johnsons’ retained experts and had ordered the Johnsons to “produce for oral depositions all [their] retained experts within 21 days,” and the parties had further extended that deadline, the Johnsons produced only one expert, Dr. Ferna ndez , a pediatric neurologist who treated Jalen at TCH. Ram and GPP attached to their
summary - judgment motion an excerpt of Fernandez’s deposition in which he testified that he wa s not a primary

- care pediatrician, he refused to offer any testimony regardi ng “what . . . Dr. Ram did in her care and treatment” of the child12

or what she “should or should not do in the care and treatment of a patient,” and he refused to “talk about or give testimony related to any of the nursi ng care that Jalen received whe n he was a patient at [GPP].” Ram and GPP asserted that they were entitled to summary judgment because the Johnsons ’ sole expert, Fernandez, offered no opinion as to liability or causation a s to Ram or GPP. Because Dr. Ram and GPP specifically asserte d the ele ment s as to which there i s no evidence to support a claim against them , the burden then shifted to the Johnsons to produce evidence to raise a fact issue on the challenged elements

. See
T EX
. R. C IV
. P. 166a(i); Johnson , 73 S.W.3d at 207.
To their response, the Johnsons attached Dr. Ram’s and GPP’s original

answers . A nswers do not constitute summary

- judgment evidence and cannot raise a fact issue precluding summary judgment. See City of Hous. v. Clear Creek Basin Auth ., 589 S.W.2d 671, 678 ( Tex. 1979); Giraldo v. Pavia , No. 14

- 10

- 00780

- CV, 2011 WL 4840712, at *4 (Tex. App.

— Houston [14th Dist.] Oct. 13, 2011, no pet.) (mem. op.)

. The Johnsons also incorporated Dr. Tobias’ s expert report. However,

s uch a report merely enables a claimant to cr oss over a threshold to proceed with a health care liability claim

. Murphy v. Russell , 167 S.W.3d 835, 838 (Tex. 2005). It does not constitute evidence for recovery. Id. Such an expert report is “not admissible in evidence; may not be used in a deposit ion, trial, or other proceeding; and may not even be referred to by any party during the course of the action for13

any purpose.” Hernandez v. Ebrom , 289 S.W.3d 316, 328 (Tex. 2009); see T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §

. 74.351(k) (Vernon Supp. 2013)

. Thus, the Johnsons did not meet their burden to produce more than a scintilla of evidence to raise a fact issue on any of the challenged elements of their claims. See T EX
. R. C IV
. P. 166a(i); Johnson , 73 S.W.3d at 207. The Johnsons assert that Dr. Ram and GPP’s summary

- judgment motion should be construed as a matter

- of

- law motion

. See T EX
. R. C IV
. P. 166a(c). However, b ecause Ram and GPP assert ed in their “No

- Evidence Motion for Summary Judgment” that the Johnsons were “ [ w ] ithout evidence of the appropria te standard of care” or “proof that a breach occurred” and their sole expert “offered no liability or causation opinions” as to either defendant, they present ed a no evidence motion. See T EX
. R. C IV
. P. 166a(i). Even if we were to construe Ram and GPP’s motion as hybrid, once the Johnsons fail ed to produce more than a scintilla of evidence under the ir rule 166a(i) burden, there would be no need to further analyze whether Ram and GPP’s proof sat isfied their r ule 166a(c) burden.
See Ridgway , 135 S.W.3d at 600

. The Johnsons further assert that the trial court erred in granting summary judgment fo r a party not named in the suit, s pecifically, “ Michael J. Bishop, M.D.,
P.A. d/b/a Grand Parkway Pediatrics

. ” They assert that the proper defendant is

“ Grand Parkway Pediatrics.”14

I n t he i r second amended petition, the Johnsons s ue Dr. Ram and “Grand Parkway Pediatrics

. ” And Ram and “ Michael J. Bishop, M.D., P.A., d/b/a Grand Parkway Pediatrics ” each filed an answer. The Johnsons asked the trial court to make a “fact finding as to th e true name or names of [those] doing business as Grand Parkway Pediatrics.” In its October 2009 order, the trial court found that the answer filed by “ Michael J. Bishop, M.D., P.A., d/b/a Grand Parkway Pediatrics ” constituted an answer on behalf of “ Grand Parkway Pediatrics. ” At a hearing on the Johnsons ’ motion to vacate the summary judgment and for a new trial, they argued that because there i s “no evidence that Michael J. Bishop , M.D., P.A. was doing business as Grand Parkw ay Pediatrics as an assumed name at the ti me of the event in January 2007 , ” he wa s not a proper party. The record contains Dr. Ram’s employment contract with Grand Parkway Pediatrics, which sh ows her employer as “Michael J. Bishop, M.D., P.A., d/b/a
Gran d Parkway Pediatrics.” The agreement, which states that it became effective on August 20, 2005, is between “Michael J. Bishop, M.D., P.A., a T exas professional association (‘ Employer [,] ’ doing business as Grand Parkway
P ediatrics) [] and Vyju Ram, M.D. (‘E mployee’ ).” The Johnsons argued that because “ Michael J. Bishop, M.D., P.A. ” ceased to exist on June 5, 2009, it could not have filed a motion for summary judgment. However, the Johnsons concede that on June 5, 2009, “ Michae l J. Bishop, M.D.,15

P.A.,” simply converted to “Michael J. Bishop, M.D., P.L.L.C. , ” and any liabilities incurred under the former organization would have “continued with the P.L.L.C.”
The Johnsons explained in the t rial court that “the reason” they were “urging this as to who are t he true names of Grand Parkway Pediatrics, because it matters as to whether or not it’s a healthcare pro vider.” They concede in their reply brief on appeal, however, that their suit constitutes “a health care liability claim.” Finally, the Johnsons assert that although Dr. Ram and GPP moved for summary judgment as to “all claims” against Ram and GPP, and the trial court granted summary judgment in favor of Ram and GPP, ordering that the Johnsons “take nothing,” the summary - judgment motion and the trial cou rt’s order do not address the Johnsons’ claims against Ram for her vicarious liability as to the acts and omissions of her nurses and staff

. The Johnsons argue that this case should be remanded “as to the vicarious liability against Dr. Ram.”
G enerally, g ranting a summary judgment on a claim not addressed in a

su mmary - judgment motion constitutes reversible error. G & H Towing Co. v. Magee , 347 S.W.3d 293, 297 (Tex. 2011) . There is a limited exception to this general rule: “ ‘ If the defendant has conclusi vely disproved an ultimate fact or element which is common to all causes of action alleged, or the unaddressed causes of action are derivative of the addressed cause of action, the summary judgment may be affirmed. ’ ” Id. (quoting Timothy Patton, S UMMARY J UDGMENTS16

IN T EXAS : P RACTICE , P ROCEDURE AND R EVIEW §

. 3.06[3] , at 3

– 20 (3d ed. 2010) (collecting cases)). And this Court has applied the exception as follows: Although the exception’s application has been expressed in various ways, it can be reduced to two: (1) when the movant has conclusively proved or disproved a matter (usually corresponding to a claim’s element or to an affirmative defense) that would also p reclude the unaddressed claim as a matter of law or (2) when the unaddressed claim is derivative of the addressed claim, and the movant proved its entitlement to summary judgment on that addressed claim.

. . . For the exception to apply, this Court has alw ays required a very tight fit between what was proved or disproved in the motion and what elements the unaddressed claim, as it was alleged, required: otherwise, the exception could swallow the rule. Wilson v. Davis , 305 S.W.3d 57, 73 (Tex. App.

— Hou ston [ 1st Dist.] 2009, no pet.). Further, the harml ess error rule requires that a reviewing court, prior to reversing a judgment because of an error of law, find that the error amounted to such a denial of the appellant’s rights as was reasonably calculated to c ause and probably did cause “the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case [on appeal].” T EX
. R.
A PP
. P. 44.1(a). Although a trial court errs in granting a summary judgment on a cause of acti on not expressly presented by written motion, the error is harmless if the omitted cause of action is precluded as a matter of law by other grounds raised in the case. Magee , 347 S.W.3d at 297

– 98 (citing Withrow v. State Farm Lloyds , 990 S.W.2d 432, 437

– 3 8 (Tex. App.

— Texarkana 1999, pet. denied ) (affirming17

summary judgment on cause of action not s pecifically addressed in movant’s motion when reversing summary judgment would be meaningless because omitted cause of action wa s precluded as matter of law) )

. H ere, the omitted ground , that of Dr. Ram’s vicarious liability for the acts and omissions of her nurses and staff, which is intertwined with the negligence grounds presented as to Ram in the summary

- judgment motion, is precluded as a matter of law . Ram an d GPP’s summa ry - judgment evidence established that the Johnsons’ sole expert, Dr. Fernandez, refused to “talk about or give testimony
related t o any of the nursing care that Jalen received when he was a patient at [GPP].” See id. ; Wilson , 305 S.W.3d at 73

. And the Johnsons presented no
summary - judgment evidence as to any of the elements of their causes of action against any defendants

. W e conclude that it would be meaningless to reverse the judgment as to Ram’s vicarious liability for the acts and omissi ons of her nurses and staff because the Johnsons could not recover on this ground as a matter of law.
See Magee , 347 S.W.3d at 297 (citing Zarzosa v. Flynn , 266 S.W.3d 614, 621 (Tex. App.

— El Paso 2008, no pet.) (holding reversal would be meaningless becau se questioned recovery precluded as matter of law) )

. We hold that the Johnsons did not meet their burden to bring forward more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements of their health care liability claim s . See Ridgway , 135 S.W.3d18

at 601

. Accordingly, w e further hold that the trial court did not err in granting summary judgment for Ram and GPP

. We overrule the Johnsons ’ second issue. Dismissal In their first issue, the Johnsons contend that the trial court erred in dismissing certain of their claims in its October 26, 2009 order “in light of the Texas Supreme Court’s recent ruling ” in Certified EMS, Inc. v. Potts , 392 S.W.3d 625 (Tex. 2013) . Although the Johnsons direct our attention to Potts and quote language from statutes governing expert reports in regard to health care liability claims , they have not presented a cogent argument to support this issue. Therefore, we hold that review of this issue has been waived

. See T EX
. R. A PP
. P. 38.1(i). In any case, to reverse the judgment on appeal, we would have to conclude that any error probably caused the rendition of an improper judgment or prevented the Johnsons from properly presenting their appeal. T EX
. R. A PP
. P. 44.1(a). To make thi s determination, we review the entire record. See, e.g. , McCraw v. Maris , 828 S.W.2d 756, 758 (Tex. 1992). To the extent that the trial court might have erred in dismissing certain claims in its interlocutory order , that error was rendered harmless by the subsequent events. See, e.g., Progressive Cnty. Mut. Ins. Co. v. Boyd , 177 S.W.3d 919, 921 (Tex. 2005). H ere , the Johnsons simply did not satisfy19

their burden of production in re sponse to a no

- evidence summary

- judgment motion that chal lenged elements tha t a re common to all of their claims.
W e overrule the Johnsons’ first issue. Conclusion
We affirm the judgment of the trial court.

Terry Jennings Justice Panel consists of Justices Jennings, Bland, and Massengale

.