AFFIRMED and Opinion Filed March 8, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-00408-CV 

DAVID AND LYDIA MAIN, Appellants 

V. 

JOSEPH ELMER LONG, FARMERS EXPRESS LLC, BRANDON SCOTT 

LAWSON, KOCH COMPANIES AND GILBERT ESPINOSA DBA 

ESPINOSA TRUCKING, Appellees 

On Appeal from the 162nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-19-08276 

MEMORANDUM OPINION 

Before Justices Pedersen, III, Goldstein, and Smith 

Opinion by Justice Goldstein 

David and Lydia Main appeal the trial court’s no evidence summary judgment 

in favor of Gilbert Espinosa d/b/a Espinosa Trucking (Espinosa).1

 In three issues, 

1

 Defendants Joseph Elmer Long, Farmers Express LLC, Brandon Scott Lawson, and Koch Companies 

were named in this suit, but no citations were requested, issued, or served. Although the trial court severed 

this cause by written order, no separate physical file with a different cause number was created; therefore, 

we proceed under the parent cause. See McRoberts v Ryals, 863 S.W.2d 450, 452-453 (Tex. 1993) (order 

granting severance is effective when signed, regardless of whether district clerk creates separate physical 

file with different cause number.); see also Doe I v. Pilgrim Rest Baptist Church, 218 S.W.3d 81, 82 (Tex. 

2007) (as a rule, severance of interlocutory judgment into separate cause makes it final; however, a court 

can condition effectiveness of severance on future certain event, such as payment of fees associated with 

severance by party requesting it.). As the trial court’s order of severance contained no conditional 

language, it was final when signed. Id.; see also AZS Holding Co., LLC v. Khosh-Sirat, No. 05-18-00845-
 –2– 

the Mains argue the trial court erred in granting Espinosa’s summary judgment 

motion, striking the Mains’ first and second amended petitions, and signing an order 

severing the Mains’ claims against Espinosa. We affirm the trial court’s judgment. 

PROCEDURAL BACKGROUND 

On June 7, 2019, the Mains filed their original petition asserting a negligence 

claim against “Gilbert Espinosa dba Espinosa Trucking” arising out of a multivehicle collision on June 9, 2017. The petition also asserted Lydia’s claim for loss 

of consortium arising from David’s bodily injuries. The petition alleged Gilbert 

Espinosa d/b/a Espinosa Trucking was “the defendant whose operation on the day 

of the collision of his vehicle failed to attain the standards required of a reasonably 

prudent motorist,” and “[h]is failure to operate his vehicle prudently resulted in a 

crash” that proximately caused bodily injuries to David. The petition acknowledged 

that the case was filed near the second anniversary of the crash and, as a “precaution 

against the event that Gilbert Espinosa were to allege that this crash was not entirely 

his fault,” the petition named as defendants Long, Farmers Express, Lawson, and 

Koch Companies. However, the petition stated that “[n]o issuance of citation on 

those defendants” was requested. 

In July 2019, Espinosa filed a general denial. In August 2019, the trial court 

entered a scheduling order setting the case for trial on July 28, 2020, and setting a 

CV, 2018 WL 5278730 at *1 (Tex. App.—Dallas October 24, 2018, no pet.) (mem. op.). We do not 

comment on or address the continued presence of the unserved defendants in the parent cause. 
 –3– 

March 30, 2020, deadline for filing amended pleadings asserting new causes of 

action or defenses. 

On March 30, 2020, Espinosa filed its first amended original answer, verified 

denial, and special exceptions to the original petition alleging a defect in parties. 

Specifically, Espinosa argued he “was not operating a motor vehicle at the time of 

the accident made the basis of this lawsuit and was not in the course and scope of 

his employment” as alleged by the Mains. Espinosa contended he was therefore not 

liable in the capacity in which he was sued. As an affirmative defense, among other 

things, Espinosa reiterated his claim that the Mains sued an improper party.2

 

In April 2020, Espinosa filed a traditional motion for summary judgment, sans 

evidentiary support, on the grounds that the Mains “failed to issue citation and serve 

[Espinosa’s] driver, Brandon Scott Lawson, with process since the suit’s initiation.”3

 

Espinosa pointed out that the Mains filed suit two days before the applicable twoyear limitation deadline and argued that merely filing a lawsuit was not sufficient to 

avoid the expiration of a statute of limitations; a party also had to exercise due 

diligence in the issuance and service of citation in order to avoid the running of 

limitations. Because the Mains altogether failed to have citation issued for Lawson, 

2

 Espinosa asserted further that the Mains’ damages were the result of the negligence of third parties or 

the negligence of the Mains themselves, the medical treatment claimed by the Mains was excessive and 

unnecessary, the Mains failed to mitigate their damages, the Mains’ medical expenses should be limited to 

those actually paid or incurred, and the Mains’ damages were the result of pre-existing conditions or 

subsequent conditions not the result of any act or omission by Espinosa. 

3

 Espinosa attached two pleadings to the motion: Plaintiffs’ Original Petition and his First Amended 

Original Answer. 
 –4– 

Espinosa argued, the Mains “could not exercise diligence in effecting service on” 

Lawson. In making this argument, Espinosa noted that the discovery deadline and 

the pleading deadline expired, but the Mains did not take action to investigate 

whether all parties were correctly named in the underlying lawsuit or to determine 

who was the true driver of Espinosa’s vehicle. 

The Mains filed a response to the motion for summary judgment in which they 

asserted it was not necessary to serve citation on the truck driver in order to recover 

from the truck owner for “the truck owner’s derivative liability for the truck owner’s 

driver’s negligence, in respondeat superior.” The response also argued the motion 

for summary judgment could not be granted because “Texas law does not require 

that plaintiffs make the driver a party to this lawsuit when the defendant from whom 

plaintiffs seek to recover damages is the (solvent and insured) truck owner who put 

the driver behind the wheel.” The response requested leave to file a first amended 

petition “filed of even date herewith.” 

On May 27, 2020, the trial court signed an order granting Espinosa’s 

traditional motion for summary judgment.4

 The order specified the Mains’ response 

to Espinosa’s summary judgment motion was “disregarded and not considered” 

because the response was “untimely filed and served under Rule 166a(c) without 

leave of court one day prior to hearing, properly noticed for May 18, 2020.” 

4

 The trial court dismissed all of the Mains’ claims against Espinosa with prejudice notwithstanding 

the factual predicate related to non-service of Lawson. 
 –5– 

The Mains filed a motion for reconsideration and/or new trial on June 19, 

2020, asking the trial court to “reconsider its recent orders, withdraw them, deny the 

summary judgment motion, reinstate this case on the active docket of this Court, and 

sign, if necessary, an order granting new trial.” On June 30, 2020, the trial court 

held a hearing on the Mains’ motion for new trial. At the hearing, the trial court 

indicated Espinosa’s motion for summary judgment should have been presented as 

a no-evidence motion and orally granted the Mains’ “motion for reconsideration.” 

While no written order granting the new trial is in the record, it is clear from the 

parties’ conduct in filing and responding to the no evidence summary judgment that 

such new trial was granted. 

On June 30, 2020, the Mains filed a second amended original petition. The 

Mains did not seek leave to amend, and no such leave was granted by the trial court. 

On July 1, 2020, Espinosa filed a no-evidence motion for summary judgment 

asserting that the Mains’ common law negligence claim against Espinosa Trucking 

failed because Espinosa Trucking “is a business entity and could not, and was not, 

driving any vehicle on the incident date as alleged” by the Mains. The motion 

asserted there was no evidence to prove the Mains’ common law negligence and 

derivative loss of consortium claims against “Gilbert Espinosa d/b/a Espinosa 

Trucking.” 

On July 23, 2020, the Mains filed a response to Espinosa’s no-evidence 

motion for summary judgment. The response asserted that the Mains’ original 
 –6– 

petition should not be misread to “plead a negligence case so extremely narrowly as 

to plead only that Gilbert Espinosa d/b/a Espinosa Trucking was behind the wheel” 

of the truck involved in the underlying accident. The response argued that Espinosa 

brought an attack on the sufficiency of the Mains’ original petition, and such an 

attack had to be raised by filing special exceptions, not a motion for no-evidence 

summary judgment. The response was supported by the Mains’ “unsworn 

declaration[s] under penalty of perjury.” David’s declaration, among other things, 

set out the facts of the underlying accident as follows: David was in traffic near 

Wylie on June 9, 2017, waiting to make a turn when he “became aware a collision 

was imminent because [he] heard the screeching sound of skidding tires” and saw 

“the dump truck skidding.” David “had the impression [the driver of the truck] had 

been going about 55 m.p.h. and just slammed his brakes and started skidding.” 

David “heard the first crash, then [he] heard more crashes, then [he] felt the impacts.” 

David’s declaration described how David spoke to the drivers of other vehicles 

involved in the collision and took pictures at the scene, including pictures of the 

driver’s license and insurance card of the man “who was driving the heavy tandem 

dump truck-trailer.” David alleged he had two orthopedic surgeries since the crash 

“to improve [his] conditions that were caused by or aggravated by the crash.” David 

stated he “did not see any good reason why the dump truck did not stop in time and 

crashed into the truck that crashed into the Flex that crashed into” him. “One guess” 

David made is that the driver of the dump truck saw a green light in his lane of travel 
 –7– 

and “did not realize until too late that all the line of vehicles in front of him was not 

moving and he would have to stop.” David stated: 

I think a reasonably careful driver should have seen that he needed to 

stop, especially if he were operating a very heavy tandem commercial 

dump truck, and should have brought his vehicle to a stop before 

crashing into other vehicles. But from what I could see it seemed like 

he was not paying attention, since he reacted too late. 

Lydia’s declaration described David’s injuries and pain that resulted from the 

accident and the negative impact of David’s injuries in the Mains’ personal lives. 

Also attached were photographs of the accident scene and Lawson’s driver’s license 

and insurance card. 

On July 30, 2020, the trial court conducted a hearing on Espinosa’s noevidence motion for summary judgment. That same day, Espinosa filed a motion to 

strike the Mains’ first and second amended petitions on the grounds that they were 

filed outside the deadline set by the trial court’s scheduling order and without leave 

of court. Espinosa also argued that the amended petitions were “prejudicial on their 

face” because they alleged new causes of action, negligent entrustment and vicarious 

liability, and Espinosa was “unfairly surprised by the untimely, new allegations” in 

the first and second amended petitions. 

On August 5, 2020, the trial court signed an order granting Espinosa’s noevidence motion for summary judgment to the extent it sought dismissal of the 

Mains’ negligence claim and to the extent Lydia’s loss of consortium claim was 

derivative of the Mains’ negligence claim. The order denied Espinosa’s motion to 
 –8– 

the extent Lydia’s loss of consortium claim was derivative of the Mains’ negligent 

entrustment claim. 

On March 11, 2021, the trial court entered an order severing the Mains’ claims 

against Espinosa from the remainder of the case and ordering that the trial court’s 

August 5, 2020 order granting Espinosa’s no-evidence motion for summary 

judgment was final and appealable. The Mains again filed a motion for new trial on 

April 9, 2021. 

On May 5, 2021, the trial court signed an order denying the Mains’ motion 

for new trial with findings that: (1) the Mains’ first and second amended petitions 

were properly struck because they were both filed untimely and without leave of 

court; (2) pursuant to the trial court’s August 21, 2020 order striking the Mains’ first 

and second amended petitions, the only live pleading was the Mains’ original 

petition; (3) the original petition asserted only a general negligence claim against 

Espinosa; (4) the Mains’ original petition did not make a claim for negligent 

entrustment and, therefore, no derivative damage claim for Lydia was made; and (5) 

the Mains had no outstanding claims against Espinosa following the trial court’s 

August 5, 2020 order granting Espinosa’s no-evidence motion for summary 

judgment as to the Mains’ negligence claim. This appeal followed. 

STANDARD OF REVIEW 

We review summary judgments de novo. De La Cruz v. Kailer, 526 S.W.3d 

588, 592 (Tex. App.—Dallas 2017, pet. denied). After adequate time for discovery, 
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a party may move for no-evidence 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. TEX. R. CIV. P. 166a(i). To defeat 

summary judgment, the non-movant must produce summary-judgment evidence that 

raises a genuine issue of material fact on each of the challenged elements. Id. We 

review no-evidence summary judgments under the same legal-sufficiency standard 

as directed verdicts. De La Cruz, 526 S.W.3d at 592. Under that standard, we view 

the evidence in the light most favorable to the non-movant, indulge all inferences in 

the non-movant's favor, credit evidence that a reasonable jury could credit, and 

disregard contrary evidence and inferences unless a reasonable jury could not. Id. 

We sustain a no-evidence challenge when: “(a) there is a complete absence of 

evidence of a vital fact, (b) the court is barred by rules of law or of evidence from 

giving weight to the only evidence offered to prove a vital fact, (c) the evidence 

offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence 

conclusively establishes the opposite of the vital fact.” Id. 

“More than a scintilla of evidence exists when the evidence rises to a level 

that would enable reasonable, fair-minded persons to differ in their conclusions.” 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell 

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Less than a 

scintilla of evidence exists when the evidence is ‘so weak as to do no more than 

create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem,
 –10– 

Inc., 650 S.W.2d 61, 63 (Tex. 1983)). A mere pleading or response to a summary 

judgment motion does not satisfy the burden of coming forward with sufficient 

evidence to prevent summary judgment. Am. Petrofina v. Allen, 887 S.W.2d 829, 

830 (Tex. 1994). 

ANALYSIS 

In their first issue, the Mains argue the trial court erred in entering its August 

5, 2020 order granting Espinosa’s no-evidence summary judgment “because there 

was evidence.” Espinosa’s no evidence motion challenged each element of the 

Mains’ common law negligence and derivative loss of consortium claims on the 

specific basis that Gilbert Espinosa dba Espinosa Trucking, as a business entity was 

not driving the vehicle. In response, the Mains cite to their “detailed Declarations” 

that “carefully checked the boxes of each and every element of their causes of action 

(including damages) and which were glossed by photographs David Main took at 

the crash scene of the crashing truck driver’s driving license” and insurance card. 

Because they presented “responsive summary judgment evidence” of each element 

of a personal injury negligence claim, the Mains argue, the trial court erred by 

granting a no-evidence summary judgment in favor of Espinosa. 

 The Mains’ response to Espinosa’s no-evidence motion for summary 

judgment raised arguments about why Espinosa’s motion was not actually a noevidence motion, contending their petition should not be read so narrowly as to plead 

only that “Gilbert Espinosa d/b/a Espinosa Trucking” was behind the wheel of the 
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dump truck involved in the accident.5

 The court must grant a no-evidence motion 

unless the respondent produces summary judgment evidence raising a genuine issue 

of material fact on one or more essential elements of a claim. TEX.R.CIV. P. 166a(i). 

The Mains’ declarations alleged an accident occurred but then offered only David’s 

“guess” as to the cause of the accident and his opinion that a reasonably careful 

driver would have brought his vehicle to a stop before crashing into other vehicles. 

Other than the attached photographic evidence of the persons involved and the 

property damage, we conclude this evidence is “‘so weak as to do no more than 

create a mere surmise or suspicion’ of a fact” for any asserted liability on any 

claimed element of negligence or loss of consortium. King Ranch, 118 S.W.3d at 

751 (quoting Kindred, 650 S.W.2d at 63). Under these circumstances, we further 

conclude the trial court did not err in granting Espinosa’s no-evidence motion for 

summary judgment. TEX. R. CIV. P. 166a(i); De La Cruz, 526 S.W.3d at 592. We 

overrule the Mains’ first issue. 

In the Mains’ second issue, they assert the trial court abused its discretion in 

striking their first amended petition and second amended petition. 

5

 The Original Petition alleges: “Defendant Gilbert Espinosa dba Espinosa Trucking is on information 

and belief the defendant whose operation on the day of the collision of his vehicle failed to attain the 

standards required of a reasonably prudent motorist. He drove his vehicle into the rear end of another 

vehicle. His failure to operate his vehicle prudently resulted in a crash, proximately causing bodily injuries 

to plaintiff David Main. Given the long skid marks at the scene, the evidence may show he was overloaded, 

and/or that his tires were inadequate or his brakes inadequately maintained or functioning.” 
 –12– 

A trial court’s decision on whether to allow the amendment of pleadings is 

reviewed under an abuse of discretion standard. Hardin v. Hardin, 597 S.W.2d 347, 

349–50 (Tex. 1980); Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 622 

(Tex. App.—Dallas 2010, no pet.). The trial court’s enforcement of its scheduling 

order is also reviewed for abuse of discretion. Bagwell v. Ridge at Alta Vista Invs. 

I, LLC, 440 S.W.3d 287, 292 (Tex. App.—Dallas 2014, pet. denied). A trial court 

abuses its discretion if it acts arbitrarily or unreasonably, without reference to any 

guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 

238, 241–42 (Tex. 1985). When reviewing matters committed to a trial court’s 

discretion, we may not substitute our own judgment for that of the trial court. Walker 

v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). 

Generally, a party may amend its pleadings at any time prior to seven days 

before trial unless the amended pleadings operate as a surprise to the opposing party. 

TEX. R. CIV. P. 63. That deadline may be altered by the trial court in a scheduling 

order issued pursuant to rule 166. TEX. R. CIV. P. 63; see also TEX. R. CIV. P. 166. 

A party may seek leave of court to amend its pleadings after the deadline imposed 

by a scheduling order entered pursuant to rule 166. TEX. R. CIV. P. 63. Leave “shall 

be granted” by the trial court “unless there is a showing that such filing will operate 

as a surprise to the opposing party.” Id. A trial court has no discretion to refuse an 

amended pleading unless (1) the opposing party presents evidence of surprise or 

prejudice; or (2) the amendment asserts a new cause of action or defense, and is thus 
 –13– 

prejudicial on its face, and the opposing party objects to the amendment. Halmos, 

314 S.W.3d at 622. 

In denying the motion for new trial, the trial court determined the Mains’ first 

and second amended petitions were both filed untimely and without leave of court.6

 

We conclude that the amended petitions constituted a surprise and were prejudicial 

in that they attempted to change the theory of the case on the sole served defendant 

that the Mains had pursued through extensive litigation that lasted past the deadline 

set for amendment of pleadings; sought to add new causes of action and new theories 

of the case and were thus prejudicial on their face; and were objected to by Espinosa. 

See id. Therefore, we conclude the trial court did not abuse its discretion or err in 

striking the Mains’ first and second amended petitions without allowing the Mains 

to amend. See TEX. R. CIV. P. 63. We overrule the Mains’ second issue. 

In their third issue, the Mains argue the trial court erred in signing the March 

11, 2021, order severing the Mains’ claims against Espinosa from the remainder of 

the case. 

Rule 41 of the Texas Rules of Civil Procedure provides that “[a]ny claim 

against any party may be severed and proceeded with separately.” See TEX. R. CIV.

6

 We note procedurally that the August 5, 2020 no evidence summary judgment order implies the court 

considered the existence of the amended pleadings by ordering: “To the extent that Plaintiff Lydia Main’s 

loss of consortium is derivative of Plaintiffs’ negligent entrustment claim, the Motion is DENIED.” 

However, the trial court thereafter struck both amended petitions by written order on August 21, 2020 and 

based upon the striking of the amended pleadings determined in the order denying the Mains’ motion for 

new trial that there were no outstanding claims against Espinosa following the granting of the no evidence 

summary judgment on the Mains’ negligence claim. 
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P. 41. This rule “grants the trial court broad discretion in the matter of severance,” 

and the trial court’s ruling will not be reversed unless it has abused its discretion. 

Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 

1990). “A claim is properly severable if (1) the controversy involves more than one 

cause of action, (2) the severed claim is one that would be the proper subject of a 

lawsuit if independently asserted, and (3) the severed claim is not so interwoven with 

the remaining action that they involve the same facts and issues.” Id.

The Mains complain the order of severance did not dispose of all claims 

because the trial court’s August 5, 2020, order left open the possibility that Lydia 

had a loss of consortium claim derivative of a negligent entrustment claim. On the 

contrary, the March 11, 2021, order severing the Mains’ claims against Espinosa 

from the remainder of the case ordered that the trial court’s August 5, 2020 order 

granting Espinosa’s no-evidence motion for summary judgment was final and 

appealable. By that time, the trial court had stricken the Mains’ first and second 

amended petitions, and no claim for negligent entrustment was before the court. 

Accordingly, the trial court did not abuse its discretion in severing the Mains’ claims 

against Espinosa from the remainder of the case. See id. We overrule the Mains’ 

third issue. 

 
 –15– 

We affirm the trial court’s judgment. 

210408F.P05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
 –16– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

DAVID AND LYDIA MAIN, 

Appellants 

No. 05-21-00408-CV V. 

JOSEPH ELMER LONG, 

FARMERS EXPRESS LLC, 

BRANDON SCOTT LAWSON, 

KOCH COMPANIES AND 

GILBERT ESPINOSA DBA 

ESPINOSA TRUCKING, Appellees 

 On Appeal from the 162nd Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-19-08276. 

Opinion delivered by Justice 

Goldstein. Justices Pedersen, III and 

Smith participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellees JOSEPH ELMER LONG, FARMERS 

EXPRESS LLC, BRANDON SCOTT LAWSON, KOCH COMPANIES AND 

GILBERT ESPINOSA DBA ESPINOSA TRUCKING recover their costs of this 

appeal from appellants DAVID AND LYDIA MAIN. 

Judgment entered this 8th day of March 2023.