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Moon v. North Texas Emergency Physicians8/23/2000
mmary judgment.
The sole ground presented in each of appellees' motions was that appellants could not produce evidence of causation because they did not have a timely designated expert competent to testify regarding causation. Appellants' failure to designate Saunders as an expert until February 23, 1998 was a sanctionable event, making his testimony at trial subject to exclusion, and not a conclusively established fact for purposes of summary judgment. Thus, appellants' failure to designate Saunders until February 23, 1998 was not a proper basis upon which to grant summary judgment. Because violation of former rule 215(5) is not a proper basis for granting a 166a(i) motion for summary judgment, and that is the specific ground set forth in appellees' motions, we conclude the trial court erred by granting appellees' motions for summary judgment.
In light of our conclusion that failure to timely designate an expert during discovery was not an appropriate basis upon which to grant summary judgment, we need not consider whether other evidence in the record was sufficient to preclude summary judgment or whether the evidence appellants produced in response to appellees' motions was properly before the trial court. In other words, because the motions were not sufficient on their face to support summary judgment, appellants, as nonmovants, were not under any duty to present evidence on the essential elements of their claims.
Accordingly, we reverse the trial court's summary judgments and remand for further proceedings.
CAROLYN WRIGHT, JUSTICE
Do Not Publish
Tex. R. App. P. 47
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