NUMBER 13-12-00719-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ENRIQUETA CASTILLO, ET AL., Appellants,

v.

MIZPAH RESIDENTIAL CARE,

D/B/A LA FAMILIA ADULT DAY

CARE, Appellee.

On appeal from the 445th District Court

of Cameron County, Texas.

MEMORANDUM OPINION 

Before Justices Benavides, Perkes, and Longoria

Memorandum Opinion by Justice Longoria

Plaintiffs, Mario Alberto Castillo and Enriqueta Castillo, filed this suit against 

defendants, Mizpah Residential Care d/b/a La Familia Adult Day Care (“Mizpah”) and 
2

Refugia L. Barrera, after plaintiffs were injured in a collision that occurred between two

automobiles in Harlingen, Texas on November 11, 2009. At the time of the collision, 

plaintiffs were clients of Mizpah, a provider of adult day care services, which was 

transporting plaintiffs in a minivan. Barrera was driving a second vehicle in the opposite 

direction on East Grimes Street. It is undisputed that Barrera entered the intersection of 

East Grimes Street and 13th Street and was attempting to make a left turn onto 13th 

Street when her vehicle struck the left front side of Mizpah’s van. Plaintiffs suffered 

serious personal injuries in the collision and were taken to a hospital for emergency 

medical care.

Plaintiffs subsequently sued Mizpah and Barrera. Plaintiffs settled their claims 

against Barrera for $40,000.00, leaving Mizpah as the only defendant. After the discovery 

period set by the trial court in its pretrial scheduling order had been completed, Mizpah 

moved for summary judgment in a hybrid motion in which it asserted both no evidence 

and traditional grounds. See TEX. R. CIV. P. 166a(c), (i). Thereafter, plaintiffs filed a 

verified motion for continuance seeking additional time to conduct further discovery. See

TEX. R. CIV. P. 251. On June 25, 2012, the date originally scheduled for a jury trial, the 

trial court entered a new pretrial scheduling order that granted the relief plaintiffs 

requested in their verified motion for continuance by ordering the discovery period 

(previously concluded on May 25, 2012) reopened, extending the time for discovery until 

October 12, 2012, setting new pretrial deadlines, and setting November 13, 2012 as the 

new trial date. The order stated that “no further continuances” would be granted. See

TEX. R. CIV. P. 166a(g).
3

Although the trial court granted the continuance for the express purpose of allowing 

additional discovery to be conducted, the trial court’s order did not refer to or purport to 

continue or postpone the previously set submission date of August 8, 2012 for Mizpah’s 

hybrid motion for summary judgment. See id. With leave of court, plaintiffs filed a late 

written response to the hybrid motion with evidence attached. See TEX. R. CIV. P. 166a(c). 

In their response, plaintiffs objected that Mizpah had moved for summary judgment on no 

evidence grounds “prematurely” in light of the continuance granted by the trial court on 

June 25, 2012. See TEX. R. CIV. P. 166a(i). Plaintiffs did not make a similar objection to 

the traditional grounds asserted in the motion. See TEX. R. CIV.P. 166a(c). Over plaintiffs’ 

objections to the no evidence grounds, the trial court heard Mizpah’s hybrid motion on 

August 21, 2012, and thereafter, it entered an order granting the motion in all respects. 

See TEX. R. CIV. P. 166a(c), (i).

On appeal, plaintiffs raise three issues, which we will reorder and address as five 

issues, in which they contend that the trial court erred in granting summary judgment for 

the following reasons: (1) there had not been adequate time for discovery when Mizpah 

moved for summary judgment on no evidence grounds; (2) Mizpah did not negate the 

alleged existence of its legal duty to exercise reasonable care while using its vehicle to 

transport disabled clients, such as plaintiffs, who were under its care and supervision as 

a provider of adult day care services; (3) Mizpah did not negate the element of proximate 

cause; (4) plaintiffs produced more than a scintilla of evidence that Mizpah’s negligence 

caused plaintiffs to sustain serious personal injuries; and (5) there is a genuine issue of 

material fact regarding whether plaintiff Enriqueta Castillo was secured by a seat belt at 

the time of the collision.
4

For the reasons set forth in greater detail below, we reverse the trial court’s 

summary judgment based on plaintiffs’ first, second, and third issues. First, we agree 

that Mizpah moved for summary judgment on no evidence grounds before “adequate time 

for discovery” in violation of Rule 166a(i) of the Texas Rules of Civil Procedure. TEX. R.

CIV. P. 166a(i) (authorizing a party to “move for summary judgment on the ground that 

there is no evidence” only “[a]fter adequate time for discovery”). Therefore, the trial court 

erred in granting the summary judgment on the no evidence grounds. See id. Second, 

by its traditional grounds for summary judgment, Mizpah did not negate the alleged 

existence of its duty to use reasonable care in transporting plaintiffs in its vehicle. See

TEX. R. CIV. P. 166a(c). Third, by its traditional grounds for summary judgment, Mizpah 

did not negate the element of proximate cause. See id. Therefore, the trial court erred 

in granting the traditional summary judgment. See id. Accordingly, we reverse the 

summary judgment and remand the case to the trial court for further proceedings 

consistent with this opinion.1

I. NO EVIDENCE SUMMARY JUDGMENT

In their first issue, plaintiffs contend that the trial court erred by granting summary 

judgment on the no evidence grounds Mizpah asserted in its hybrid motion because 

Mizpah moved for summary judgment on no evidence grounds before there had been 

“adequate time for discovery.” TEX. R. CIV. P. 166a(i).2

A. Applicable Law

 

1 Having concluded that plaintiffs have established reversible error by their first three issues, we do 

not reach plaintiffs’ fourth or fifth issues. See TEX. R. APP. P. 47.1.

2 When, as in this case, a “motion for summary judgment present[s] both no-evidence and 

traditional grounds, we first review the propriety of the summary judgment under the no-evidence standards 

of [R]ule 166a(i).” Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet. 

denied).
5

“Under Rule 166a(i), a party may move 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.” W. Invs., Inc. v. Urena, 162 S.W.3d 

547, 550 (Tex. 2005); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (“To 

prevail on a no-evidence summary-judgment motion, a movant must allege that there is 

no evidence of an essential element of the adverse party’s claim.”). By filing a no 

evidence motion, the movant “shifts [the burden] to the . . . [non-movant] to present 

enough evidence to raise a genuine issue of material fact on the challenged elements.” 

Ham v. Equity Residential Mgmt. Servs., Corp., 315 S.W.3d 627, 631 (Tex. App.—Dallas 

2010, pet. denied). “Unless the respondent produces summary judgment evidence 

raising a genuine issue of material fact, the court must grant the motion.” W. Invs., Inc., 

162 S.W.3d at 550; Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (“Absent a timely response, a trial court must grant a 

no-evidence motion for summary judgment that meets the requirements of Rule 166a(i).”); 

Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.—Corpus Christi 2001, no pet.) (“Failure 

to respond to a no-evidence motion is fatal.”). 

A party may move for summary judgment on no evidence grounds only “[a]fter 

adequate time for discovery.” TEX. R. CIV. P. 166a(i). The official comment to Rule 166a(i) 

states that “[a] discovery period set by pretrial order should be adequate opportunity for 

discovery unless there is a showing to the contrary, and ordinarily a [no evidence] motion 

. . . would be permitted after the period but not before.” TEX. R. CIV. P. 166a(i) & cmt. 

(1997) (emphasis added). “This comment, unlike other notes and comments in the rules 

of civil procedure, was specifically intended to inform the construction and application of 
6

the rule.” Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 344 (Tex. App.—Corpus Christi 

2003, pet. denied) (op. on reh’g).

B. Standard of Review

“We review a trial court’s determination that there has been an adequate time for 

discovery on a case-by-case basis, under an abuse-of-discretion standard.” McInnis v. 

Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.). “[T]he 

determination of whether there has been adequate time for discovery lies within the trial 

court’s discretion, not this Court’s discretion.” Univ. of Tex. M.D. Anderson Cancer Ctr. 

v. King, 329 S.W.3d 876, 884 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). 

“But the [trial] court is not vested with unlimited discretion . . . .” Womack v. Berry, 

291 S.W.2d 677, 683 (Tex. 1956). Rather, the trial court “is required to exercise a sound 

and legal discretion within limits created by the circumstances of the particular case.” Id.; 

see also Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011) (same). The trial court must exercise 

its discretion to further “[t]he express purpose of the rule,” Womack, 291 S.W.2d at 683, 

which in this instance, is to ensure that there is “adequate time for discovery” before a 

party moves for summary judgment on no evidence grounds. TEX. R. CIV. P. 166a(i). 

“[T]he ultimate purpose of discovery is to seek the truth, so that disputes may be decided 

by what the facts reveal, not by what facts are concealed.” In re Colonial Pipeline Co., 

968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (quotations omitted). And the 

ultimate purpose of summary judgment is “to eliminate patently unmeritorious claims and 

untenable defenses.” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 

n.5 (Tex. 1979).
7

“[T]he abuse of discretion standard generally ‘insulates the trial judge’s reasonable 

choice from appellate second guessing.’” Samlowski v. Wooten, 332 S.W.3d 404, 410 

(Tex. 2011) (quoting W. Wendell Hall, Standards of Review in Texas, 38 ST. MARY’S L.J. 

47, 62 (2006)). Thus, “[i]t is not enough that the court of appeals would have decided the 

dispute differently . . . .” Id. “[T]o find an abuse of discretion when factual matters are in 

dispute, the reviewing court must conclude that the facts and circumstances of the case 

extinguish any discretion in the matter.” Id. (quotations omitted). “A trial court therefore 

abuses its discretion when it renders an arbitrary and unreasonable decision lacking 

support in the facts or circumstances of the case.” Id. “Similarly, a trial court abuses its 

discretion when it acts in an arbitrary or unreasonable manner without reference to 

guiding rules or principles.” Id. 

“A reasonable error in judgment, however, is not an abuse of discretion.” Id. at 

411. Generally, “[i]f reasonable minds may differ . . . , no clear abuse of discretion is 

shown . . . .” City of Pharr v. Tippit, 616 S.W.2d 173, 176 (Tex. 1981).

C. Relevant Facts

Plaintiffs filed this suit against Mizpah and Barrera on October 26, 2010. On May 

4, 2011, plaintiffs’ counsel filed a suggestion of death stating that both plaintiffs had died. 

See TEX. R. CIV. P. 151 (“Death of Plaintiff”). On August 30, 2011, plaintiffs filed a motion 

for alternative service, which stated that “[s]ervice has been attempted unsuccessfully on 

. . . [Mizpah’s] registered agent.” See TEX. R. CIV. P. 106 (“Method of Service”). The 

motion incorporated by reference the affidavit of Roel Zamora, which was attached to the 

motion and stated that on March 28, 2011, Zamora attempted to serve Mizpah’s 

registered agent at Mizpah’s place of business. Zamora stated that he believed that the 
8

registered agent was attempting to avoid service. On August 31, 2011, the trial court 

entered an order granting plaintiffs’ motion for alternative service. 

Mizpah was served with citation on September 15, 2011. Mizpah filed its original 

answer on October 7, 2011. On January 4, 2012, the trial court signed and entered a 

level three scheduling order stating, among other things, “that all parties must complete 

all discovery, including the supplementation of discovery answers, on or before May 25, 

2012” and that “trial before a jury is set for June 25, 2012 at 9:00 a.m.”

On April 2, 2012, Mizpah filed a combined motion to dismiss and motion for 

summary judgment, asserting traditional grounds based on the applicable statute of 

limitations and based on plaintiffs’ purported lack of capacity. See TEX. R. CIV. P. 166a(c). 

On April 24, 2012, plaintiffs, now acting by and through their legal heirs and the 

representatives of their respective estates, filed their first amended petition. See TEX. R.

CIV. P. 151. Plaintiffs alleged negligence claims against Mizpah for the personal injuries 

they sustained in the collision that occurred on November 11, 2009. According to 

plaintiffs, their injuries were proximately caused by Mizpah’s negligence in (1) failing to 

properly restrain plaintiffs with seat belts while transporting them in its vehicle while 

plaintiffs were under its care and supervision as a provider of adult day care services, (2) 

operating a motor vehicle at a speed greater than the speed at which a person of ordinary 

prudence would have operated the vehicle under the same or similar circumstances, and 

(3) failing to apply the brakes to the motor vehicle in a timely and prudent manner “and/or” 

wholly failing to apply the brakes to avoid the collision. Plaintiffs also asserted claims 

against Barrera, the driver of the second vehicle, for her alleged role in causing the 

collision. 
9

Also on April 24, 2012, plaintiffs filed their response to Mizpah’s combined motion 

to dismiss and motion for summary judgment. On May 8, 2012, plaintiffs filed a motion 

to dismiss their claims against Barrera on the grounds that the parties had settled those 

claims. On May 15, 2012, the trial court entered an order of dismissal only as to the 

claims asserted against Barrera, as requested by plaintiffs. On May 22, 2012, the trial 

court entered an order denying Mizpah’s combined motion to dismiss and motion for 

summary judgment. 

On May 25, 2012, plaintiffs filed their second amended petition. In addition to the 

allegations summarized above, plaintiffs made the new allegation that Mizpah was 

negligent in entering the intersection when it was not safe to do so. Plaintiffs also alleged 

that Mizpah failed to properly train and supervise its employee driver or the employee in 

charge of loading Mizpah’s clients into its vehicle and securing them with seat belts.

On May 29, 2012, after the original discovery period had ended, Mizpah filed its 

second motion for summary judgment, a hybrid motion, arguing, inter alia, that there was 

no evidence that (1) plaintiffs were not wearing their seat belts at the time of the collision, 

(2) Mizpah was negligent, or (3) any negligence by Mizpah proximately caused plaintiffs’ 

injuries. Mizpah also sought summary judgment on the basis that plaintiffs, both 

deceased, could not identify “what happened” during the collision. Mizpah argued further 

that plaintiffs could not produce any evidence that would be admissible in light of their 

purported failure to timely identify witnesses with knowledge of relevant facts. See TEX.

R. CIV. P. 193.6 (“Failing to Timely Respond – Effect on Trial”). Although the case was 
10

set for a jury trial to be held on June 25, 2012, a submission date of August 8, 2012 was 

set for Mizpah’s hybrid motion.3 

On June 7, 2012, plaintiffs filed a verified motion for continuance. See TEX. R. CIV.

P. 251, 252. In the motion, plaintiffs asserted that Mizpah’s “driver had made new 

allegations about the facts surrounding the accident which now require the [p]laintiffs to 

take his deposition and locate witnesses that [p]laintiffs believe will be able to impeach 

his testimony.” Additionally, plaintiffs noted that Mizpah had filed an amended “petition 

to include a counter claim . . . based on Chapter[s] 9 and 10 of the Texas Civil Practice 

and Remedies Code, Section 13.” According to plaintiffs, they had “not had adequate 

time to review the claims made therein, specifically . . . [Mizpah] is alleging that one of the 

parties, Mario Alberto Castillo was married.” Therefore, plaintiffs argued, “[i]t is necessary 

that more investigation be done on this matter to obtain evidence to refute said 

allegations.”

On June 25, 2012, the date of the original trial setting, the trial court entered a 

pretrial scheduling order stating, among other things, that the discovery period (previously 

concluded on May 25, 2012) would be reopened, the deadline to complete discovery 

 

3 The appellate record does not include a copy of any written order entered by the trial court setting 

a submission date of August 8, 2012 for Mizpah’s hybrid motion. Thus, we are uncertain about when 

Mizpah obtained the setting. The record indicates that Mizpah may have obtained the setting on June 7, 

2012. We take this from Mizpah’s response to plaintiffs’ motion for leave to file a late response to Mizpah’s 

hybrid motion for summary judgment. Mizpah’s response was verified in relevant part by Mizpah’s attorney 

and stated that the setting was obtained on June 7, 2012, purportedly after the trial court granted plaintiffs’ 

verified motion for continuance. However, the order that effectively granted plaintiffs’ verified motion for 

continuance was not entered until June 25, 2012. To complicate the situation further, the order states that 

the new schedule was “ordered” on June 8, 2012. The order also states that it was “signed and entered” 

on June 25, 2012, and it bears a file-stamp date of June 25, 2012. Finally, we note that in the verified 

portion of its response, Mizpah related that it was the court coordinator, not the trial judge, who set the 

submission date of August 8, 2012 for Mizpah’s hybrid motion.
11

would be extended until October 12, 2012, a trial before a jury would be set for November 

13, 2012, and “no further continuances” would be granted. 

On August 8, 2012, plaintiffs filed a written response to Mizpah’s hybrid motion 

with evidence attached. In their response, plaintiffs objected to the no evidence grounds 

Mizpah asserted in its hybrid motion on the basis that they were “premature[]” because 

the new deadline to conduct discovery had not yet expired when Mizpah moved for 

summary judgment on the no evidence grounds. On August 9, 2012, Mizpah filed a letter 

brief stating, among other things, that “[i]t makes no difference that the prior discovery 

deadline of May 25, 2012 has been extended until October or that trial has been reset.” 

Mizpah also pointed out that plaintiffs failed to file their summary judgment response and 

evidence seven days prior to the submission date. See TEX. R. CIV. P. 166a(c) (“Except 

on leave of court, the adverse party, not later than seven days prior to the day of hearing 

may file and serve opposing affidavits or other written response.”). Mizpah requested 

that the trial court “not consider the response and evidence in ruling on the motion.”

On August 15, 2012, plaintiffs filed a motion for leave, requesting the trial court’s 

permission to file their response and evidence late. See id. Plaintiffs explained that their 

“failure to respond seven days prior to the submission date was not intentional or a result 

of conscious indifference but a result of a mistake.” Mizpah filed a response the next day, 

arguing that the motion for leave should be denied. On August 21, 2012, the trial court 

entered an order granting plaintiffs’ motion for leave. On the same day, the trial court 

considered Mizpah’s hybrid motion and entered an order granting the motion in all 

respects.

D. Discussion
12

On appeal, plaintiffs contend that the trial court erred by granting summary 

judgment because Mizpah moved for summary judgment on no evidence grounds before 

the end of the new discovery period scheduled in the trial court’s order entered on June 

25, 2012. See TEX. R. CIV. P. 166a(i). As noted above, “the determination of whether 

there has been adequate time for discovery lies within the trial court’s discretion, not this 

Court’s discretion.” King, 329 S.W.3d at 884. However, the trial court’s discretion does 

not extend to “determining what the law is or applying the law to the facts.” See Walker 

v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“A trial court has no ‘discretion’ in 

determining what the law is or applying the law to the facts.”). In reviewing determinations 

of law, we give no deference to the trial court—the applicable standard of review is de 

novo. See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. 

proceeding) (“Under an abuse of discretion standard, we defer to the trial court’s factual 

determinations if they are supported by evidence, but we review the trial court’s legal 

determinations de novo.”).

In its pretrial scheduling order signed and entered on January 4, 2012, the trial 

court determined that the period ending on May 25, 2012 would be adequate time for 

discovery. See TEX. R. CIV. P. 166a(i) & cmt. (“A discovery period set by pretrial order 

should be adequate opportunity for discovery unless there is a showing to the contrary . 

. . .”). On May 29, 2012, after the scheduled discovery period had ended, Mizpah moved 

for summary judgment in a hybrid motion asserting both traditional and no evidence 

grounds. See TEX. R. CIV. P. 166a(c), (i). Thereafter, as set forth in footnote 3, the court 

coordinator set a submission date of August 8, 2012 for Mizpah’s hybrid motion, even 
13

though it appears that at that time, a jury trial was still technically scheduled for June 25, 

2012.

Plaintiffs then sought and obtained a continuance to conduct further discovery 

regarding what happened during the collision. See TEX. R. CIV. P. 251. This discovery 

was reasonably calculated to obtain evidence responsive to Mizpah’s hybrid motion, 

particularly, the no evidence grounds asserted in the motion. Specifically, plaintiffs sought 

to obtain evidence regarding statements made by the Mizpah employee who was 

operating its minivan at the time of the collision regarding what happened during the 

collision. Plaintiffs also requested additional time to locate other fact witnesses who could 

support their case. 

On June 25, 2012, the date of the original trial setting, the trial court signed and 

entered a written pretrial scheduling order that reopened discovery, gave the parties until 

October 12, 2012 to complete discovery, set new pretrial deadlines, and reset the trial 

date to November 13, 2012. In its order, the trial court did not purport to continue or 

otherwise postpone the previously scheduled submission date of August 8, 2012 for 

Mizpah’s hybrid motion. The order did not mention or refer to the motion. However, the 

order stated that “no further continuances” would be granted. See TEX. R. CIV. P. 166a(g).

Inherent in the trial court’s order entered on June 25, 2012 is an implied finding 

that as of June 25, 2012, there had not been adequate time for discovery. See TEX. R.

CIV. P. 166a(i). We defer to that finding because it is supported by the relevant facts and 

circumstances of the case as detailed above and as set forth in plaintiffs’ verified motion 

for continuance. See Iliff, 339 S.W.3d at 81. Given the trial court’s finding that there had 

not been adequate time for discovery as of June 25, 2012, it necessarily follows that there 
14

could not have been adequate time for discovery roughly one month earlier, on May 29, 

2012, when Mizpah moved for summary judgment on no evidence grounds. See TEX. R.

CIV. P. 166a(i). The only reasonable conclusion supported by the record is that Mizpah 

moved for summary judgment on no evidence grounds before adequate time for 

discovery. See id. If so, the trial court erred by considering and granting the summary 

judgment on the no evidence grounds Mizpah asserted in the hybrid motion. See id. 

We note that plaintiffs filed a late response to the hybrid motion, with leave of court, 

on August 8, 2012. In their response, plaintiffs advised the trial court that Mizpah had 

moved for summary judgment on no evidence grounds “prematurely” because it filed the 

hybrid motion on May 29, 2012. Plaintiffs pointed out that on June 25, 2012, the trial court 

granted plaintiffs’ verified motion for continuance by entering a new pretrial scheduling 

order that, among other things, reopened the discovery period (previously concluded on 

May 25, 2012), extended the time for discovery until October 12, 2012, set various new 

pretrial deadlines, reset the trial date to November 13, 2012, and stated that “no further 

continuances” would be granted. 

In a letter brief filed on August 9, 2012, Mizpah argued that “[i]t makes no difference 

that the prior discovery deadline of May 25, 2012 ha[d] been extended until October or 

that trial ha[d] been reset.” Mizpah also argued that “there ha[d] been adequate time for 

discovery” because this “[s]uit ha[d] been on file more than 20 months and considerable 

written discovery ha[d] been propounded and answered.” Mizpah’s letter brief was not 

verified or supported by any affidavits.

On August 21, 2012, the trial court entered an order granting plaintiffs’ motion for 

leave. On the same day, the trial court considered Mizpah’s hybrid motion and plaintiffs’ 
15

response and entered an order granting the motion in all respects. Although the trial 

court’s order stated that the motion was “granted in all respects,” the basis for the trial 

court’s ruling is unclear. In granting the summary judgment on the no evidence grounds 

asserted by Mizpah, we believe the trial court did one of two things: either it determined 

that there had been adequate time for discovery, contrary to its June 25, 2012 order, or it 

concluded that adequate time for discovery was not required. Again, because the 

rationale for the trial court’s ruling is unclear, we will address both possibilities.

First, and most likely, in our view, the trial court might have determined that there 

had been adequate time for discovery, contrary to its June 25, 2012 order. This 

determination involves a factual inquiry that is “case-specific.” McClure v. Attebury, 20 

S.W.3d 722, 729 (Tex. App.—Amarillo 1999, no pet.). Courts have identified a number 

of nonexclusive factors that may be considered by the reviewing court in applying the 

abuse of discretion standard to this determination. See King, 329 S.W.3d at 884.4 “In 

applying the abuse of discretion standard, reviewing courts defer to the trial court’s factual 

determinations; a reviewing court does not engage in its own factual review, but decides 

whether the record supports the trial court’s resolution of factual matters.” State v. 

$217,590.00 in United States Currency, 18 S.W.3d 631, 633–34 (Tex. 2000). “If the 

 

4 See McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“In 

considering whether the trial court permitted an adequate time for discovery, we consider the following 

factors: (1) the nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence 

motion, (3) the length of time the case was active, (4) the amount of time the no-evidence motion was on 

file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery that 

already had taken place, and (7) whether the discovery deadlines in place were specific or vague.”); see 

also D.R. Horton-Tex. Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort Worth 

2013, no pet.) (citing McInnis and listing the same seven factors); In re Guardianship of Patlan, 350 S.W.3d 

189, 196 (Tex. App.—San Antonio 2011, no pet.) (same); Univ. of Tex. M.D. Anderson Cancer Ctr. v. King, 

329 S.W.3d 876, 884 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (same). 
16

record supports the trial court’s evidentiary findings, the reviewing court is not at liberty to 

disturb them.” Id. at 634. 

As set forth in footnote 3, it appears that the court coordinator for the trial court set

the August 8, 2012 submission date for Mizpah’s hybrid motion. Ultimately, however, the 

decision to consider the no evidence grounds asserted in the motion rested with the trial 

court. And the trial court made that decision on August 21, 2012, after Mizpah’s hybrid 

motion was submitted for decision and after plaintiffs filed their late response, with leave 

of court, objecting that Mizpah had moved for summary judgment on no evidence grounds 

“prematurely.” 

The apparent basis for the trial court’s decision to consider the no evidence 

grounds asserted in Mizpah’s hybrid motion was the letter brief Mizpah filed on August 9, 

2012, in which counsel for Mizpah stated that “[i]t makes no difference that the prior 

discovery deadline of May 25, 2012 ha[d] been extended until October or that trial ha[d] 

been reset.” Counsel also argued that “there ha[d] been adequate time for discovery” 

because this “[s]uit ha[d] been on file more than 20 months and considerable written 

discovery ha[d] been propounded and answered.” We will address each of the foregoing 

assertions in our analysis.

As a preliminary matter, we disagree with counsel’s assertion that “[i]t makes no 

difference that the prior discovery deadline of May 25, 2012 ha[d] been extended until 

October or that trial ha[d] been reset.” Rule 166a(i) requires “adequate time for discovery” 

before a party may move for summary judgment on no evidence grounds. TEX. R. CIV. P. 

166a(i). In this case, after Mizpah moved for summary judgment on no evidence grounds, 

plaintiffs filed a verified motion for continuance seeking additional time to conduct further 
17

discovery. See TEX. R. CIV. P. 251. The Texas Supreme Court has identified this as a 

key factor when reviewing the adequacy of the time for discovery. See, e.g., Tenneco 

Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (“When a party contends that 

it has not had an adequate opportunity for discovery before a summary judgment hearing, 

it must file either an affidavit explaining the need for further discovery or a verified motion 

for continuance.”) (citing, inter alia, TEX. R. CIV. P. 166a(g)). Therefore, we consider 

plaintiffs’ verified motion for continuance in our analysis, and we also take into 

consideration the fact that in response to plaintiffs’ motion, the trial court entered a new 

pretrial scheduling order, reopened discovery, set a new discovery deadline, set other 

new pretrial deadlines, and reset the trial date—all to allow further discovery after the 

originally scheduled discovery period had ended and after Mizpah had moved for 

summary judgment on no evidence grounds. Based on the foregoing, we conclude that 

inherent in the trial court’s June 25, 2012 order is an implied finding that there had not 

been adequate time for discovery when Mizpah moved for summary judgment on no 

evidence grounds on May 29, 2012. See TEX. R. CIV. P. 166a(i). Accordingly, we reject 

Mizpah’s contention that “[i]t makes no difference that the prior discovery deadline of May 

25, 2012 ha[d] been extended until October or that trial ha[d] been reset.”

In its letter brief, Mizpah also argued that there had been adequate time for 

discovery because this “[s]uit ha[d] been on file more than 20 months” and “considerable” 

discovery had been propounded and answered. As noted above, Mizpah did not provide 

the trial court with any evidentiary support for these assertions. We recognize that the 

trial court was free to take judicial notice of the pleadings and could thereby determine 

how long the suit had been on file. See Tex. Dep’t of Pub. Safety v. Claudio, 133 S.W.3d 
18

630, 633 (Tex. App.—Corpus Christi 2002, no pet.) (“A court may properly take judicial 

notice of pleadings that have been filed.”). However, counsel’s statement that 

“considerable” discovery had been propounded and answered was conclusory and 

unsubstantiated by any evidence. Thus, it was not a valid basis for the trial court to 

exercise its discretion. See Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492, 495 (Tex. 

App.—Dallas 2006, no pet.) (“Unsubstantiated, conclusory allegations in a motion or in 

argument by counsel are insufficient.”). As a result, we must decide whether the length 

of time the suit was on file was a sufficient basis for the trial court to determine that there 

had been adequate time for discovery when Mizpah moved for summary judgment on no 

evidence grounds on May 29, 2012. 

In addressing this issue, we begin by noting that many, if not most, intermediate 

courts of appeals in Texas have “refused to read into the rule a bright-line requirement 

that the discovery period be completed before a no-evidence motion can be filed.” 

Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.—Dallas 2005, no pet.). 

According to these courts, the language of the rule itself “reflects that a more flexible 

approach was intended.” Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 

(Tex. App.—Dallas 2002, no pet.).5 The rationale for this thinking is that the text of the 

rule requires “adequate time for discovery,” not that discovery be completed. See, e.g., 

 

5 One court noted that the approach was so flexible that “[n]o Texas appellate court has overturned 

a no-evidence summary judgment on the ground that adequate time for discovery had not passed.” 

Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.—San Antonio 2001, pet. denied). While 

that statement might have been true when it was made in 2001, such decisions have been rendered since 

that time. See, e.g., Gutierrez v. Vermeer Mfg. Co., No. 14-08-00997-CV, 2010 WL 1486969, at *3 (Tex. 

App.—Houston [14th Dist.] April 15, 2010, no pet.) (mem. op.) (holding in a case that had been on file for a 

“significant amount of time,” that the trial court erred by granting no evidence summary judgment because 

defendant moved for summary judgment twenty-nine days after plaintiff obtained a continuance to complete 

discovery and thus before adequate time for discovery). 
19

id. (“Neither [R]ule 166a(i) nor the comment thereto states that the discovery period . . . 

must have ended before a no-evidence summary judgment may be granted.”). 

As noted above in footnote 4, courts have enumerated a nonexclusive list of factors 

that are relevant to the adequacy of the time for discovery; however, the length of time a 

suit was on file is not one of the factors specifically listed in the most frequently cited 

opinions. See, e.g., McInnis, 261 S.W.3d at 200. Instead, the courts have considered 

“the length of time the case was active,” which in some instances, will be different than 

the length of time the suit was on file. See, e.g., id. However, we recognize that the 

factors identified by the courts are nonexclusive. Furthermore, in an appropriate case, 

the length of time the suit has been on file may be a relevant factor. See McClure, 20 

S.W.3d at 730 (listing the date the suit was filed among other relevant factors). Some 

courts applying the nonexclusive list of factors have referred to the “period of time the 

case had been pending” and commented that “the rules do not mandate a minimum 

period of time a case must be pending before a [no evidence] motion may be filed.” See, 

e.g., Rest. Teams Int’l, 95 S.W.3d at 340. 

Overall, however, in reviewing the adequacy of the time for discovery, the 

intermediate courts of appeals have considered the relevant facts and circumstances of 

the case, not merely the length of time the case has been on file or how long it has been 

active. See, e.g., Dickson Const., Inc. v. Fid. & Deposit Co. of Md., 5 S.W.3d 353, 357 

(Tex. App.—Texarkana 1999, pet. denied) (considering the length of time the case has 

been active in the trial court and the nature of the evidence necessary to controvert the 

no evidence motion for summary judgment in determining that there was adequate time 

for discovery). 
20

Although we believe this approach is correct, we also believe there is one factor in 

particular that “ordinarily” must be given more weight than the others. TEX. R. CIV. P.

166a(i) cmt. This is the discovery period scheduled by the trial court in a pretrial order. 

It is a uniquely significant factor. See McInnis, 261 S.W.3d at 203 (“Ordinarily, however, 

the deadline specified in the docket control order is the best indicator [of whether there 

has been adequate time for discovery].”). It is the only factor expressly mentioned in the 

official comment to Rule 166a(i). See TEX. R. CIV. P. 166a(i) cmt. Furthermore, affording 

due weight to this factor advances the fair and orderly administration of justice by giving 

effect to “[t]he express purpose of the rule,” Womack, 291 S.W.2d at 683, which is to 

ensure that there is “adequate time for discovery” before a party moves for summary 

judgment on no evidence grounds. TEX. R. CIV. P. 166a(i). This approach also balances 

the “the ultimate purpose of discovery[, which] is to seek the truth,” In re Colonial Pipeline 

Co., 968 S.W.2d at 941, with the ultimate purpose of summary judgment, which is “to 

eliminate patently unmeritorious claims and untenable defenses.” City of Houston, 589 

S.W.2d at 678 n.5. “Adherence to the deadlines in the docket control order holds the 

most promise for meeting the parties’ legitimate expectations for discovery and for 

promoting a fair and orderly development of the evidence.” See McInnis, 261 S.W.3d at 

203. Thus, although courts have cautioned that the court ordered discovery period is not 

a “conclusive measure” of the adequacy of the time for discovery, see, e.g., id., it is 

“ordinarily” the best measure. TEX. R. CIV. P. 166a(i) cmt.6 

 

6

In 1997, when Rule 166a(i) was first promulgated, Chief Justice Thomas Phillips warned that 

there was “erroneous information” being circulated about the newly created no evidence motion for 

summary judgment:

Much erroneous information about the operation and effects of the new rule has been 

bandied about in the legal press and at continuing legal education seminars, probably due 

to the timing of the rule change. The bench and bar should note that the burden will never 
21

In the absence of evidence regarding the other relevant factors that could be used 

to make a showing to the contrary, we are persuaded that the discovery period scheduled 

by the trial court in its pretrial order entered on June 25, 2012 was an adequate time for 

discovery for purposes of Rule 166a(i). See TEX. R. CIV. P. 166a(i). In fact, the Texas 

Supreme Court has suggested that “the no-evidence rule, by its very language, is to be 

used following discovery.” Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 

879, 882 (Tex. 2009) (emphasis added). This further supports our conclusion that in this 

case, the time set for discovery by the trial court in its pretrial scheduling order is the best 

measure of the adequacy of the time for discovery. See TEX. R. CIV. P. 166a(i) cmt. 

The fact that the scheduling order was entered in response to plaintiffs’ verified 

motion for continuance and after Mizpah filed its hybrid motion asserting no evidence 

grounds for summary judgment indicates that additional weight should be given to this 

particular factor. See Gutierrez v. Vermeer Mfg. Co., No. 14-08-00997-CV, 2010 WL 

1486969, at *3 (Tex. App.—Houston [14th Dist.] Apr. 15, 2010, no pet.) (mem. op.) 

(holding in a case that had been on file for a “significant amount of time,” that the trial 

court erred by granting a no evidence summary judgment because the defendant moved 

for summary judgment twenty-nine days after plaintiff obtained a continuance to complete 

discovery and thus before adequate time for discovery). We note that none of the parties 

have argued that the trial court’s order entered on June 25, 2012 was inappropriate or 

erroneous in any respect. Again, given that the trial court found that further discovery 

 

shift to the non-movant to establish a fact issue until there has been an adequate 

opportunity for discovery, which ordinarily will not occur until after the close of any 

court ordered discovery period.

See Thomas R. Phillips, Texas Supreme Court Update, 60 TEX. B.J. 858, 861–62 (1997) (emphasis added). 
22

was necessary in its June 25, 2012 order, there could not have been an adequate time 

for discovery when Mizpah moved for summary judgment on no evidence grounds on 

May 29, 2012. 

Based on the foregoing, we conclude that in this case, the length of time the suit 

had been on file was not a sufficient basis for the trial court to determine that there had 

been adequate time for discovery when Mizpah moved for summary judgment on no 

evidence grounds on May 29, 2012. See TEX. R. CIV. P. 166a(i). Thus, to the extent that 

the trial court’s ruling on August 21, 2012 was based on an implied finding that was 

contrary to the implied finding in its June 25, 2012 order, we conclude that the trial court 

abused its discretion in making the contrary finding on August 21, 2012 because it was 

not supported by the facts or circumstances of the case or by any evidence. See

Samlowski, 332 S.W.3d at 410.

The second (and, in our view, less likely) possibility that we identified above as a 

potential rationale for the trial court’s ruling was that the court might have concluded that 

an adequate time for discovery was not required before a party, such as Mizpah, could 

move for summary judgment on no evidence grounds. Again, it is unclear that this was 

the actual rationale for the trial court’s ruling. However, we note that Rule 166a(i) leaves 

no room for discretion on this point. See TEX. R. CIV. P. 166a(i). A party may not move 

for summary judgment on no evidence grounds until “[a]fter adequate time for discovery.” 

Id. Accordingly, to the extent that the trial court concluded otherwise, its decision was an 

error of law and thus an abuse of discretion. See Walker, 827 S.W.2d at 840.

In sum, we conclude that the trial court’s order entered on June 25, 2012

established that there had not been adequate time for discovery when Mizpah moved for 
23

summary judgment on no evidence grounds on May 29, 2012. Although it appears that 

the trial court subsequently revisited the issue on August 21, 2012, when it considered 

and granted the no evidence grounds Mizpah asserted in its hybrid motion over plaintiffs’ 

objections, we conclude that its decision was an abuse of discretion because there was 

no basis in law or in fact to support a determination that there had been adequate time 

for discovery when Mizpah moved for summary judgment on no evidence grounds on 

May 29, 2012 or to support a conclusion that adequate time for discovery was not required 

before Mizpah could move for summary judgment on no evidence grounds. See

Samlowski, 332 S.W.3d at 410; Walker, 827 S.W.2d at 840. Accordingly, we conclude 

that the trial court erred in granting the summary judgment on Mizpah’s no evidence 

grounds. See TEX. R. CIV. P. 166a(i). We sustain plaintiffs’ first issue.7

II. TRADITIONAL SUMMARY JUDGMENT

In their second and third issues, plaintiffs contend that the trial court erred in 

granting the summary judgment on the traditional grounds Mizpah asserted in its hybrid 

 

7 We note that plaintiffs have not assigned error to the trial court’s decision to consider the traditional 

grounds for summary judgment Mizpah asserted in its hybrid motion before the end of the newly scheduled 

discovery period set in response to plaintiffs’ verified motion for continuance. According to Rule 166a(b), 

“[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought 

may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all 

or any part thereof.” TEX. R. CIV. P. 166a(b) (emphasis added). However, under Rule 166a(g), the trial 

court may grant a continuance of a summary judgment proceeding or even deny a motion for summary 

judgment if it “appear[s] from the affidavits of a party opposing the motion that he cannot for reasons stated 

present by affidavit facts essential to justify his opposition.” See TEX. R. CIV. P. 166a(g). Under such 

circumstances, the trial court has authority to “refuse the application for judgment or may order a 

continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may 

make any such other order as is just.” Id. In their written response to Mizpah’s hybrid motion, plaintiffs 

objected that Mizpah had asserted the no evidence grounds “prematurely,” but plaintiffs did not make a 

similar objection to the traditional grounds asserted in the motion, even though the trial court had previously 

granted a continuance to allow for additional discovery to be conducted. See TEX. R. CIV. P. 166a(c) 

(“Issues not expressly presented to the trial court by written motion, answer or other response shall not be 

considered on appeal as grounds for reversal.”). Accordingly, we do not address whether it was proper for 

the trial court to consider the traditional grounds after granting the continuance because the issue was 

waived by plaintiffs’ failure to object and by plaintiffs’ failure to raise the issue on appeal. 
24

motion because Mizpah did not negate the elements of duty or proximate cause with 

respect to plaintiffs’ negligence claims. See TEX. R. CIV. P. 166a(c).

A. Standard of Review

“To prevail on a traditional summary-judgment motion, a movant must show that 

no genuine issue of material fact exists and that it is entitled to judgment as a matter of 

law.” Sw. Elec. Power Co., 73 S.W.3d at 215. “The burden of proof is on the movant, 

and all doubts as to the existence of a genuine issue as to a material fact are resolved 

against him.” Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 

S.W.2d 41, 47 (Tex. 1965). “In other words, the evidence must be viewed in the light 

most favorable to the party opposing the motion.” Id.

“[A] motion for summary judgment must itself expressly present the grounds upon 

which it is made.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 

1993). “A motion must stand or fall on the grounds expressly presented in the motion.” 

Id. “In determining whether grounds are expressly presented, reliance may not be placed 

on briefs or summary judgment evidence.” Id. “Likewise, issues a non-movant contends 

avoid the movant’s entitlement to summary judgment must be expressly presented by 

written answer to the motion or by other written response to the motion and are not 

expressly presented by mere reference to summary judgment evidence.” Id. The Texas 

Supreme Court has explained in relevant part as follows:

[S]ummary judgments must stand or fall on their own merits, and the nonmovant’s failure to except or respond cannot supply by default the grounds 

for summary judgment or the summary judgment proof necessary to 

establish the movant’s right—the movant’s right is not established and the

movant must still assert grounds in the motion for summary judgment itself 

and establish its entitlement to summary judgment. While it would be 

prudent and helpful to the trial court for the non-movant always to file an 

exception, answer or response, the non-movant needs no exception, 
25

answer or response to the motion to contend on appeal that the grounds 

expressly presented to the trial court by the movant’s motion are insufficient 

as a matter of law to support the summary judgment. Even if the nonmovant fails to except or respond, if the grounds for summary judgment are 

not expressly presented in the motion for summary judgment itself, the 

motion is legally insufficient as a matter of law.

Id. at 342 (quotations & citations omitted).

B. Applicable Law

“The common law doctrine of negligence consists of three elements: 1) a legal 

duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately 

resulting from the breach.” Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 

(Tex. 1990); see also Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 

2009) (“Negligence actions in Texas require a legal duty owed by one person to another, 

a breach of that duty, and damages proximately caused by the breach.”) (quotations 

omitted). “The threshold inquiry in a negligence case is duty.” Phillips, 801 S.W.2d at 

525. “The plaintiff must establish both the existence and the violation of a duty owed to 

the plaintiff by the defendant to establish liability in tort.” Id. The existence of a legal duty 

is a question of law for the court to decide “from the facts surrounding the occurrence in 

question.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The Texas 

Supreme Court has explained in relevant part as follows:

In determining whether the defendant was under a duty, the court will 

consider several interrelated factors, including the risk, foreseeability, and 

likelihood of injury weighed against the social utility of the actor’s conduct, 

the magnitude of the burden of guarding against the injury, and the 

consequences of placing the burden on the defendant. Of all these factors, 

foreseeability of the risk is the foremost and dominant consideration.

Phillips, 801 S.W.2d at 525 (quotations & citations omitted).
26

“Proximate cause consists of two elements: cause-in-fact and foreseeability.” 

Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998). “The cause-in-fact element 

of proximate cause is met when there is some evidence that the defendant’s act or

omission was a substantial factor in bringing about injury without which the harm would 

not have occurred.” Id. (quotations omitted). “In the context of proximate cause, 

foreseeability requires that a person of ordinary intelligence should have anticipated the 

danger created by a negligent act or omission.” Id. “Foreseeability in the context of 

causation asks whether an injury might reasonably have been contemplated because of 

the defendant’s conduct.” Id. “Foreseeability does not permit simply viewing the facts in 

retrospect and theorizing an extraordinary sequence of events by which the defendant’s 

conduct caused the injury.” Id. “Rather, the question of foreseeability involves a practical 

inquiry based on common experience applied to human conduct.” Id. (quotations 

omitted).

C. Mizpah’s Grounds for Traditional Summary Judgment

In its motion, Mizpah argued that “[t]he summary judgment evidence in this case 

conclusively establishes that the driver of . . . [Mizpah’s] vehicle was not negligent and 

did not proximately cause the accident.” Mizpah cited “[t]he police report from the scene 

of the accident[, which] indicates that Refugia Barrera, and not . . . [Mizpah’s] driver . . . 

caused the accident.” Mizpah argued that “because the only summary judgment 

evidence conclusively establishes that the driver for [Mizpah] . . . was not negligent and 

did not proximately cause the accident, [Mizpah] . . . is entitled to summary judgment on 

[plaintiffs’] . . . claims.” Mizpah also argued that it “cannot be held liable, as a matter of 

law, for the allegation that [plaintiffs] . . . failed to wear a seatbelt.” According to Mizpah, 
27

“Section 545.41[3] of the Texas Transportation Code places the responsibility on the 

passenger, and not the driver, to use his or her seatbelt.” Mizpah argued that “summary 

judgment must be granted because the evidence conclusively negates negligence by 

[Mizpah] . . . and that any negligence by [Mizpah] . . . proximately caused the accident or 

[p]laintiffs’ alleged injuries.”

D. Discussion

As set forth above, in their second amended petition, plaintiffs alleged that they 

suffered personal injuries as the proximate result of several different negligent acts and 

omissions by Mizpah. Specifically, plaintiffs alleged that Mizpah was negligent in the 

following respects: (1) failing to properly restrain plaintiffs with seat belts while 

transporting plaintiffs in its vehicle while plaintiffs were under Mizpah’s care and 

supervision as a provider of adult day care services, (2) operating a motor vehicle at a 

speed greater than the speed at which a person of ordinary prudence would have 

operated the vehicle under the same or similar circumstances, (3) failing to apply the 

brakes to the motor vehicle in a timely and prudent manner “and/or” wholly failing to apply 

the brakes to avoid the collision, (4) entering the intersection when it was not safe to do 

so, and (5) failing to properly train and supervise its employee driver or the employee in 

charge of loading its clients into its vehicle and securing them with seat belts.

In their written response to Mizpah’s hybrid motion, plaintiffs acknowledged that 

Mizpah was purporting to rely on summary judgment evidence that Barrera was at fault 

for causing the collision. Although plaintiffs did not expressly state that they were 

abandoning their allegations that Mizpah’s negligence caused the collision, they did state 

that the issue was “irrelevant.” Plaintiffs stated that they were relying on the allegations 
28

that Mizpah was negligent in failing to provide a “suitable” seat belt for plaintiff Mario 

Alberto Castillo and negligent in failing to “seat belt [plaintiff] Enriqueta Castillo, thus not 

safely transporting their clients making their injuries much worse [than] if they had in fact 

been seatbelted.” Based on the foregoing, we conclude that Mizpah waived any error in 

the trial court’s ruling as it related to the cause of the collision. See TEX. R. CIV. P. 166a(c) 

(“Issues not expressly presented to the trial court by written motion, answer or other 

response shall not be considered on appeal as grounds for reversal.”).

Thus, what remains are plaintiffs’ allegations that (1) Mizpah, as a provider of adult 

day care services to disabled clients, such as plaintiffs, “had a duty to exercise the degree 

of care that a reasonably careful person would use to avoid harm to others under 

circumstances similar to those described herein” by properly restraining plaintiffs while 

transporting them and by properly training and supervising the employees responsible for 

operating its vehicle, loading its clients into its vehicle, and securing its clients with seat 

belts; (2) Mizpah breached the duty it owed to plaintiffs; and (3) Mizpah’s negligence 

proximately caused plaintiffs to suffer serious personal injuries. 

In its hybrid motion, Mizpah argued that it had no duty to restrain plaintiffs with seat 

belts based on Section 545.413 of the Texas Transportation Code. See TEX. TRANS.

CODE ANN. § 545.413 (West, Westlaw through 2013 3d C.S.). However, as plaintiffs 

pointed out in their written response, Section 545.413 does not purport to address 

whether Mizpah had a common law duty to restrain plaintiffs. See id. Under Section 

545.413, it was not a traffic offense for Mizpah to fail to restrain plaintiffs with safety belts, 

but there is nothing in Section 545.413 that purports to dictate whether Mizpah had a 

common law duty to restrain plaintiffs. See id. Thus, Mizpah did not negate the alleged 
29

existence of a legal duty based on its citation to Section 545.413, and the trial court erred 

in granting summary judgment on that basis. See TEX. R. CIV. P. 166a(c). 

We hold that Mizpah did not negate the alleged existence of a legal duty, but we 

do not decide whether Mizpah actually had such a duty as a matter of law. We refrain 

from making that decision for three reasons. First, it is not necessary to final disposition 

of this appeal. See TEX. R. APP. P. 47.1. Second, the scope of our review is limited to 

the grounds for summary judgment expressly set out in the motion. See McConnell, 858 

S.W.2d at 341. In its motion, Mizpah attempted to negate the existence of the legal duty 

alleged by plaintiffs by relying exclusively on Section 545.413 of the Texas Transportation 

Code, which as discussed above, does not purport to address the existence or nonexistence of civil duties or common law liability for negligence in the factual circumstances 

presented by this case. See TEX. TRANS. CODE ANN. § 545.413. Given that this Court 

may not affirm or reverse the trial court’s summary judgment on “issues [not] expressly 

set out in the motion or in an answer or any other response,” TEX. R. CIV. P. 166a(c), we 

must limit our holding accordingly and express no opinion with respect to any grounds for 

summary judgment not expressly set out in Mizpah’s motion. Third and finally, in the 

interests of judicial economy and judicial restraint, we believe the trial court should be 

given the opportunity to decide this issue in the first instance on remand with the benefit 

of full briefing by the parties. See Burrow v. Ace, 997 S.W.2d 229, 246 (Tex. 1999) 

(“[G]iven the difficult considerations involved, we believe it to be imprudent for us to decide 

the matter in the first instance without a full airing below.”). 

The second traditional ground for summary judgment Mizpah asserted in its motion 

was that its alleged negligence did not proximately cause plaintiffs’ injuries because 
30

Barrera, the driver of the second vehicle, was at fault for causing the collision, as indicated 

in the police report, which Mizpah submitted as summary judgment evidence. See TEX.

R. CIV. P. 166a(c). As set forth above, however, in their response to Mizpah’s motion, 

plaintiffs essentially abandoned their allegations that Mizpah was negligent in causing the 

collision. However, plaintiffs did not abandon their allegations that Mizpah was negligent 

in failing to properly restrain plaintiffs while transporting them and failing to properly train 

and supervise the employees responsible for operating its vehicle, loading its clients into 

its vehicle, and securing its clients with seat belts.

Mizpah did not attempt to affirmatively negate the element of proximate cause with 

respect to these allegations because it took the position that it owed plaintiffs no duty to 

restrain them with seat belts. In its motion, Mizpah did not address why there would be 

no proximate cause if the court were to decide that Mizpah had not negated the alleged 

existence of the legal duties set forth above. Rather, in the motion, Mizpah argued 

generally that the negligence of the other driver, not Mizpah, caused the collision and 

plaintiffs’ injuries. The motion did not address plaintiffs’ allegation that Mizpah’s 

negligence in failing to restrain plaintiffs and failing to properly train and supervise its 

employees proximately caused plaintiffs to suffer serious personal injuries. Therefore, 

Mizpah failed to negate the element of proximate cause, and the trial court erred in 

granting summary judgment on this basis. See id. 

Finally, we note that Mizpah also moved for summary judgment on the basis that 

there was no evidence that plaintiffs were not restrained by seat belts when the collision 

occurred. See TEX. R. CIV. P. 166a(i). Mizpah asserted this ground in both the no 

evidence and traditional sections of its hybrid motion. However, in making this assertion 
31

in connection with its traditional grounds for summary judgment, Mizpah did not 

affirmatively state that plaintiffs were wearing their seat belts when the collision occurred 

and did not point out any evidence in the record to affirmatively establish that plaintiffs 

were wearing their seat belts when the collision occurred. See TEX. R. CIV. P. 166a(c). 

Mizpah argued only that there was no evidence that plaintiffs were not wearing their seat 

belts. See TEX. R. CIV. P. 166a(i).

Again, a summary judgment must “stand or fall on the grounds expressly 

presented in the motion.” McConnell, 858 S.W.2d at 341. “In determining whether 

grounds are expressly presented, reliance may not be placed on briefs or summary 

judgment evidence.” Id. Therefore, we may not search the record for evidence that 

plaintiffs were wearing their seat belts because, in its motion, Mizpah failed to assert that 

plaintiffs were wearing their seat belts and failed to identify any summary judgment 

evidence that would support such an assertion. See id. 

Mizpah did not identify or discuss any evidence regarding whether plaintiffs were 

secured by safety belts. Mizpah merely asserted that plaintiffs could not identify what 

happened in the collision because they are both deceased. Mizpah also asserted that 

there was no evidence that plaintiffs were not restrained. To the extent that these 

assertions raised otherwise valid grounds for summary judgment, the trial court could not 

have properly granted the motion on these grounds because they were no evidence 

grounds and we have already concluded that there was not adequate time for discovery 

before Mizpah moved for summary judgment on no evidence grounds. See TEX. R. CIV.

P. 166a(i). Therefore, we cannot consider the no evidence grounds raised in Mizpah’s 
32

hybrid motion, including the ground that there was no evidence that plaintiffs were not 

wearing their seat belts when the collision occurred. See id. 

We sustain plaintiffs’ second and third issues.

III. CONCLUSION

Without reaching plaintiffs’ fourth or fifth issues, we reverse the trial court’s 

summary judgment and remand the case for further proceedings consistent with this 

opinion. See TEX. R. APP. P. 47.1.

NORA L. LONGORIA

Justice

Dissenting Memorandum Opinion by Justice Perkes.

Delivered and filed the

22nd day of May, 2014.