## NUMBER 13

- 20

- 00 146

- C V

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

A LY SSA RODRIGUEZ

, Appellant,

v.

ALEJANDRINA GUTIERREZ

- PEREZ

, Appellee.

On appeal from the County Court at Law No. 2

of Hidalgo C ounty, Texas.



## MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant Alyssa Rodriguez brought suit against appellee Alejandrina Gutierrez

Perez

, claiming negligence and asserting property and loss

- of

- use damages . The suit

stem med from a car accident that occurred in January 2015. Gutierrez

- Perez filed

traditional and no

- evidence partial summary judgment motions challenging the causation

element of Rodri guez ’ s negligence claim

. In what we construe as one issue, Rodriguez2 argues that the trial court erred in granting Gutierrez

- Perez ’ s summary judgment motions

.

We reverse and remand.

I. B ACKGROUND

On January 30, 2015, Gutierrez

- Perez was traveling northbound in the 400 Block

of North Glasscock Boulevard in Alton, Hidalgo County, Texas when she collided with a

vehicle driven by Rosalinda Pedroza Trevino

, who was attempting to turn left into a

parking lot. The initial collision propelled Trevino ’ s vehicle into oncoming traffic

. Trevino ’ s

vehicle struck Rodriguez ’ s vehicle

, which had been traveling southbound. The

investigating officer concluded that Gutierrez

- Perez failed to control her speed

.

Rodriguez ’ s lienholder

, Nissan Motor Acceptance Corporation (Nissan), and Gutierrez

Perez ’ s insurer, Government Employees Insurance Company (GEICO)

, later determined

Rodriguez ’ s vehicle, a 2013 Nissan Sentra

, was a “ total loss. ” 1

On September 25, 2015, Rodriguez filed suit against Gutierrez

- Perez. 2 O n July

26, 2019, Gutierrez

- Perez filed traditional and no

- evidence motion s for partial summary

judgment against Rodriguez. Gutierrez

- Perez argued 3 that the property damages

Rodriguez sought to recoup in the suit had already been resolved by an alleged

settlement agreement between GEICO and Nissan , wherein Nissan had been paid on

Rodriguez’s behalf

. As evidence, 4 Gutierrez

- Perez pointed to Rodriguez ’ s third amended

1 Neither party disputes this determination

.

2 Rodriguez ’ s petition was later amended to include defendants Trevino and GE I CO. On

September 6, 2017, GEICO filed a motion for severance, which was granted.

3 Gutierrez

- Perez presented the same arguments challenging Rodriguez’s property damages and

loss

- of

- use damages in her traditional summary judgment as in her no

- evidence motion for summary

judgment

.

4 Exhibits A through F were originally included in the mot ion but were “ withdraw[n] ” by Gutierrez

Perez ’ s counsel at the hearing on Gutierrez

- Perez’s summary judgment motions and were thus not3 petition, which stated, “ [o]n or about November 2016, GEICO tendered the amount of

$12,172.63 for alleged property damage to Nissan which Nissan accepted. ” The petition

further asserted that Rodriguez “ did not authorize the $12,172.63 payment by GEICO to

Nissan, ” and Rodriguez still “ owed [Nissan] a balance of a minimum of $12,803.02 ” on

the vehicle loan

. Gutierrez

- Perez further argued that the settlement agreement created a

new, independent, and intervening cause which cannot be attributed to Gutierrez

- Perez ’ s

alleged negligence ; thus, Gutierrez

- Perez argue d

, Rodriguez ’ s dissatisfaction with the

settlement amount and pleaded damages

— i.e., her outstanding vehicle loan debt

— would

not be a recov er able form of property damage under her negligence claim

.

Regarding Rodriguez ’ s loss

- of

- use damages claim, Gutierrez

- Perez argued

Rodriguez did not provide adequate notice of the claim 5 and any damages accrued were

attributed to Rodriguez ’ s delay.

Rodriguez filed a response to Gutierrez

- Perez ’ s motions for summary judgment

supported by the following evidence: the accident report; an affidavit from Rodriguez

claiming

, in part, that “ [t]here has been no settlement of [her] property damage claim ” ; a

recorded interview between Trevino and GEICO ; Trevino ’ s responses to Rodriguez ’ s

available for the trial court ’ s consideration. Exhibit “ A ” was a letter signed by Rodriguez ’ s and Gutierrez

Perez ’ s counsel on April 12, 2017, confirming that Rodriguez ’ s bodily injury claim had been settled for

$19,500. Exhibit “ B ” was the agreement for release and indemnification, signed by Rodriguez on April 17,

2017, which specifically provided that “ this release does not release Releasing Party ’ s property damage

claims. ” Exhibit “ C ” was a copy of the check to Rodriguez for $19,430.29 for “ Bodily Injury Coverage Full

and Final Settlement, ” dated April 14, 2017. Exhibit “ D ” was the market valuation report for Rodriguez ’ s

vehicle prepared for GEICO. Exhibit “ E ” was a letter from GEICO to Rodriguez dated September 15, 2016,

notifying her that the “ total loss settlement ” for her vehicle would be $12,172.63. Exhibit “ F ” was a settlement

demand letter executed by Rodriguez ’ s counsel on July 19, 2016.

5 Gutierrez

- Perez assert ed in her partial summary judgment motions that Rodriguez first made

GEICO aware of her loss

- of

- use damages on July 25, 2016 . However

, Rodriguez argued that she incurred

damages, in part, in the form of the “ loss of use of [a] vehicle ” in her original petition filed on September 25,

2015. Gutierrez

- Perez presented no evidence in support of her loss

- of

- use damage challenge.4 requests for interrogator y responses

, production s

, and disclosures; excerpts from

Rodriguez ’ s oral dep o sition; excerpts from Gutierrez

- Perez ’ s oral deposition ;

photographs of Rodriguez ’ s vehicle; and an affidavit from Rodriguez ’ s counsel. Rodriguez

countered that Gutierrez

- Perez ’ s proximate cause challenge is a fact issue for the jury to

determine. Additionally, Rodriguez asserted that Gutierrez

- Perez ’ s argument regarding

proximate cause had no bearing on Rodriguez ’ s loss

- of

- use damages claim, which the

parties agree was not addressed in any settlement.

T he trial court granted Gutierrez

- Perez ’ s no

- evidence and traditional partial

summary judgment motion s

. 6 This appeal followed.

II. S UMMARY J UDGMENT

By a single issue, Rodriguez argues the trial court erred in granting summary

judgment in favor of Gutierrez

- Perez.

A. Standard of Review

Our review of a summary judgment is de novo. Eagle Oil & Gas Co. v. TRO

- X,

L.P.

, 619 S.W.3d 699, 705 (Tex. 2021)

. We take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in the

nonmovant ’ s favor. Bush v. Lone Oak Club, LLC

, 601 S.W.3d 639, 646 (Tex. 2020).

“ When a party moves for both traditional and no

- evidence summary judgment s, we first

consider the no

- evidence motion. ” First United Pentecostal Church of Beaumont v.

Parker

, 514 S.W.3d 214, 219 (Tex. 2017). Under Rule 166a(i), a party may move for a

6 The clerk’s record contains two copies of an order titled, “Order Granting Defendant Alejandrina

Gutierrez

- Perez’ [s] Traditional and No [

- ] Evidence Motion for Partial S ummary Judgment.” The orders

contain identical language but were signed on two different dates

, December 23, 2019, and December 27,

2019 , respectively, and contain different file stamp dates.5 no

- evidence motion 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. ” T EX

. R. C IV

. P

. 166a(i). “ To defeat a no

- evidence motion,

the non

- movant must produce evidence raising a genuine issue of material fact as to the

challenged elements. ” Parker

, 514 S.W.3d at 220. “ If the non

- movant fails to meet its

burden under the no

- evidence motion, there is no need to address the challenge to the

traditional motion as it necessarily fails. ” Id. at 219.

To be entitled to traditional summary judgment

, a movant must establish there is

no genuine issue of material fact so that the movant is entitled to judgment as a matter of

law. T EX

. R. C IV

. P

. 166a(c); Painter v. Amerimex Drilling I, Ltd

., 561 S.W.3d 125, 130

(Tex. 2018). A defendant who conclusively negates a single essential element of a cause

of action or conclusively establishes an affirmative defense is entitled to summary

judgment on that claim. Lujan v. Navistar, Inc

., 555 S.W.3d 79, 84 (Tex. 2018) (citing

Centeq Realty, Inc. v. Siegler

, 899 S.W.2d 195, 197 (Tex. 1995)). If the movant carries

this burden, the burden shifts to the non

- movant to raise a genuine issue of material fact

precluding summary judgment. Id. Evidence is conclusive only if reasonable people could

not differ in their conclusions. Cmty. Health Sys. Prof ’ l Servs. Corp. v. Hansen

, 525

S.W.3d 671, 681 (Tex. 2017); City of Keller v. Wilson

, 168 S.W.3d 802, 816 (Tex. 2005).

B

. Negligence

The elements of a negligence cause of action consist of the “ ‘ existence of a legal

duty, a breach of that duty, and damages proximately caused by the breach. ’ ” Gharda

USA, Inc. v. Control Sols., Inc.

, 464 S.W.3d 338, 352 (Tex. 2015) (quoting IHS Cedars6 Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S.W.3d 794, 79 8 (Tex. 2004) )

(emphasis added). Proximate cause is made up of two elements: (1) cause

- in

- fact and

(2) foreseeability. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie

, 578 S.W.3d 506,

518 (Tex. 2019); LMB, Ltd. v. Moreno

, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam)

.

Cause

- in

- fact is shown if (1) the negligent act was a substantial factor leading to the harm,

and (2) if it were not “ but for ” the alleged negligent act, the harm would not have occurred.

Stanfield v. Neubaum

, 494 S.W.3d 90, 97 (Tex. 2016). “ If a negligent act or omission

‘ merely creat[es] the condition that makes the harm possible, ’ it is not a substantial factor

in causing the harm as a matter of law. ” Id

. (quoting Mason , 143 S.W.3d at 799 )

.

Foreseeability can be proven by establishing that “ a person of ordinary intelligence should

have anticipated the danger created by a negligent act. ” Doe v. Boys Clubs of Greater

Dall., Inc.

, 907 S.W.2d 472, 478 (Tex. 1995).

I n determining whether proximate cause exists , the court may further consider

whether “a new and independent, or superseding cause ” has intervene d between the

original wrong and the final injury “ such that the injury is attributable to the new cause

rather than the first and more remote cause.” Stanfield , 494 S.W.3d at 97. I n other words,

i f a new and independent cause is present, the ca u sal connection is broken, and the

defendant’s negligence cannot be established as the proximate cause for the plaintiff’s

harm. Id . at 99. Th e superseding cause doctrine, however, is not an affirmative defense ;

it is one factor to be considered by a fact finder when analyzing proximate cause

. See id.

at 98 n.6 (citing Dall

. Ry. & Terminal Co. v. Bailey

, 250 S.W.2d 379, 383 ( Tex. 1952 ) );

Penrod v. Schecter

, 319 S.W.3d 737, 744 (Tex. App.

— El Paso 2009, pet. denied).7 Only the third element of negligence

— Rodriguez ’ s claimed property and loss

- of

use damages and whether they were proximately caused by the breach

— is at issue here.

Accordingly

, we proffer no opinion on the existence of a legal duty or a breach of that

duty. See Rogers v. Zanetti

, 518 S.W.3d 394, 401 (Tex. 2017).

C

. Property Damages

Rodriguez filed a sworn affidavit i n refute of Gutierrez

- Perez ’ s no

- evidence

challenge exclusively premised on the existence of a property damage settlement

agreement precluding recovery of property damages. See T EX

. R. C IV

. P

. 166a(i) ; Parker

,

514 S.W.3d at 220

. Rodriguez swore, “ There has been no settlement of my property

damage claim. ” Although Rodriguez ’ s pleadings indicate Nissan , as lien holder, accepted

payment of $12,172.63 for the property damage to Rodriguez ’ s vehicle on her behalf,

Rodriguez ’ s affidavit asserting that the issue of property damages remains unresolved

creates a n issue of a material fact regarding damages, a necessary element of

negligence

. See T EX

. R. C IV

. P

. 166a(i); Parker

, 514 S.W.3d at 220. Thus, Gutierrez

Perez ’ s no

- evidence partial summary judgment fails, and the trial court erred in granting

Gutierrez

- Perez ’ s no

- evidence partial summary judgment on this basis.

With respect to Gutierrez

- Perez ’ s traditional summary judgment motion, Gutierrez

Perez bore the burden to conclusively negate a single essential element of negligence or

conclusively establish an affirmative defense. See T EX

. R. C IV

. P

. 166a(c); Lujan

, 555

S.W.3d at 84. Gutierrez

- Perez maintains that Rodriguez ’ s pleaded allegations establish

Gutierrez

- Perez ’ s “ affirmative defense ” of “ a new and independent, or superseding

cause. ” However, the superseding cause doctrine is not an affirmative defense. Bailey

,8 250 S.W.2d at 383; Schecter

, 319 S.W.3d at 744. Moreover, a t the hearing on the motion

for partial summary judgment

, Gutierrez

- Perez ’ s counsel withdrew the exhibits attached

to her partial summary judgment motions

. 7 Therefore, t he court was only left with

Rodriguez ’ s affidavit claiming there was no existing property damages settlement

, and

Rodriguez ’ s pleadings confirming a settlement agreement for property damages between

GEICO and Nissan

. See Regency Field Servs

. , LLC v. Swift Energy Operating, LLC

, No.

19

- 0545,

__ S.W.3d

__, __, 2021 WL 1823048, at *6 (Tex. May 7, 2021) ( holding that

although “ a party cannot rely on its own pleaded allegations as evidence of facts to

support its summary

- judgment motion

, ” it may rely on the opposing party ’ s pleadings as

evidence ). W hile “ courts may grant summary judgment based on deficiencies in an

opposing party ’ s pleadings, ” the evidence Gutierrez

- Perez points to

, which must be taken

as true in the favor of the nonmovant, does not conclusively establish that property

damages had been settled or, by extension, that proximate cause does not exist. See id.

at *8 ; cf. Balderas

- Ramirez v. Felder , 537 S.W.3d 625, 635 (Tex. App.

—Austin 2017, pet.

denied)

. Gutierrez

- Perez neither conclusively negate d a single essential element of

negligence n or conclusively establish ed an affirmative defense , and t herefore, the trial

court erred in granting the traditional summary judgment motion on Gutierrez

- Perez ’ s

property damages challenge. See Painter

, 561 S.W.3d at 130.

D

. Loss

- of

- U se Damages

Gutierrez

- Perez complains in her partial summary judgment motions that

7 We note that while Gutierrez

- Perez originally admitted as evidence a letter dated September 15,

2016, notifying Rodriguez that the “ total loss settlement ” for her vehicle would be $12,172.63, the only

settlement agreement signed by Rodriguez was dated April 12, 2017, dealt with Rodriguez ’ s bodily injury

related damages

, and explicitly excluded the resolution of vehicle property damages.9 Rodriguez is barred from recovering loss

- of

- use damages because Rodriguez waited for

nearly eighteen months to report her loss

- of

- use damages to GEICO, thereby creating a

notice deficiency issue and a damages claim “ too far removed from the accident. ” 8

Loss

- of

- use damages are “ concerned with a different injury wholly independent of

the measure of property damage. ” J & D Towing, LLC v. Am. Alt

. Ins. Corp.

, 478 S.W.3d

649, 676 (Tex. 2016). The loss

- of

- use damages inquiry “ seeks to make whole a plaintiff

who has suffered economic injury that flows naturally, but not necessarily, from the loss

of personal property. ” Id. F or a plaintiff to recover loss

- of

- use damages in “ total

destruction ” cases, the Texas Supreme Court established a multi

- part, fact

- specific

inquiry. First, “ the damages claimed may not be too remote, ” but rather, they must be

“ foreseeable and directly traceable to the tortious act. ” Id. at 677. Second, the damages

must not be speculative and must be reasonably able to be calculated. Id

. Third, “ the

damages may not be awarded for an unreasonably long period of lost use. ” Id. “ A plaintiff

may not recover loss

- of

- use damages for a period longer than that reasonably needed to

replace the personal property. ” Id

.

Gutierrez

- Perez argued in her summary judgment motions that she had “no

knowledge that such [loss

- of

- use] damages had accrued” because Rodriguez waited to

give “notice to the insurance company of her loss

- of

- use damages about eighteen month s

following the accident.” 9 However, it is clear from Rodriguez ’s pleadings that Rodriguez

8 To the extent that Gutierrez

- Perez additionally means to assert that Rodriguez has waived her

right to recover for loss of use, waiver is largely a matter of intent and is ordinarily a question of fact for the

trier of fact to determine. See Shields Ltd. P ’ ship v. Bradberry

, 526 S.W.3d 471, 474 (Tex. 2017); see also

Park v. Aboudail

, No. 02

- 20

- 00260

- CV, 2021 WL 1421442, at *5 (Tex. App.

— Fort Worth Apr. 15, 2021, no

pet.) (mem. op.) (applying the waiver doctrine to a loss of use damages claim). In any matter, Gutierrez

Perez has not presented any evidence of waiver.

9 Gutierrez

- Perez does not explain why Rodriguez was required to give notice to her insurer of her10 made Gutierrez

- Perez aware; Rodriguez asserted loss

- of

- use damages in her original

petition, filed September 25, 201 5

— eight months after the accident. Moreover, to counter

Gutierrez

- Perez ’ s no

- evidence motion challenging the foreseeability of Rodriguez ’s loss

of

- use

, Rodriguez submitted evidence

— including

, the accident report, photographs of

Rodriguez ’ s vehicle, Rodriguez ’ s affidavit and excerpts from her deposition, and excerpts

from Gutierrez

- Perez ’ s oral deposition

— indicating : (1) following Gutierrez

- Perez ’ s failure

to control her speed, Gutierrez

- Perez ’ s vehicle collided with Trevino ’ s vehicle, which

thereafter struck Rodriguez ’ s vehicle ; and (2) the collision resulted in the loss of use of

Rodriguez ’ s vehicle

. Gutierrez

- Perez has presented no caselaw, nor have we found any,

that would preclude loss

- of

- use damages recovery due to a lack of notice or foreseeability

in these circumstances. Such loss

- of

- use damages

— the loss of use of Rodriguez ’s

vehicle

— is neither “ too far removed ” or an unforeseeable event following an accident that

notably both parties agree resulted in the total destruction of Rodriguez ’ s vehicle. See id.

at 656 (providing that a vehicle owner “ may recover loss

- of

- use damages, such as the

pecuniary loss of the use of an automobile damaged in a collision ” ) (internal citations

omitted) ; see also Bush

, 601 S.W.3d at 646. Thus, the trial court erred in granting

Gutierrez

- Perez ’ s no

- evidence partial summary judgment regarding Rodriguez’s loss

- of

use damages on this basis

.

As observed supra with the property damages issue

, Gutierrez

- Perez presented

no evidence apart from Rodriguez ’ s pleadings in support of Gutierrez

- Perez ’s traditional

motion for summary judgment on loss

- of

- use damages

. See T EX

. R. C IV

. P

. 166a(c);

loss

- of

- use damages claim against Gutierrez

- Perez

. Additionally, w e construe this argument as one which

also challenges the foreseeability of such claim. See J & D Towing , 478 S.W.3d at 677.11 Painter , 561 S.W.3d at 130. Gutierrez

- Perez did not indicate how Rodriguez ’ s pleadings

further ed her proposition, and having reviewed Rodriguez ’ s pleadings

, we remain

uncertain

. See Lujan , 555 S.W.3d at 84 ; Hansen , 525 S.W.3d at 681

. Therefore,

Gutierrez

- Perez did not meet her burden, and t he trial court further erred by granting

Gutierrez

- Perez ’ s traditional motion for summary judgment

. We sustain Rodriguez’s sole

issue.

III. C ONCLUSION

We reverse the trial court ’ s judgment and remand the cause for further

proceedings consistent with this opinion.

CLARISSA SILVA

Justice

Delivered and filed on the

1st day of July

, 202 1

.