Appeal from the County Court at Law No. 2 Midland County,
Texas Trial Court Cause No. CC17487
consists of: Wright, C.J., Willson, J., and Bailey, J.
Morris's pro se appeal arises out of an automobile
accident that occurred on October 21, 2011. Although she was
not directly involved in the accident, she owned the vehicle
that was damaged when it was rear-ended in a multiple-vehicle
collision. Theresa Myers, who was following too
closely, rear-ended Jose Terrazas, who then rear-ended
Elizabeth Mayers, whose vehicle rear-ended Morris's
vehicle. Morris filed suit in county court on April 11, 2014,
seeking damages related to the collision. The trial court
granted Mayers's, Terrazas's, and Myers's motions
for summary judgment and entered a take-nothing judgment as
to Morris's claims.
appeal, Morris asserts four issues. First, she alleges that
the district clerk failed to timely prepare and issue
citations to the parties. Second, she claims that the trial
court erred when it did not grant a default judgment. Third,
she alleges that the trial court failed to give due
consideration to her reasons for delay in serving Myers with
service of process. Fourth, she argues that the trial court
should not have granted summary judgment because there was a
material issue of fact on Terrazas's and Myers's
liability. We affirm.
November 4, 2013, fourteen days after the statute of
limitations deadline, Morris first filed suit for damages in
justice court. However, the justice court dismissed the
suit because Morris claimed an amount of damages that
exceeded the jurisdictional limits of that
court. Following this dismissal, Morris filed her
claim in county court on April 11, 2014. Terrazas received
service of process more than seven months later on November
17, 2014. Morris attempted service of process by certified
mail on Myers on November 20, 2014, and again by certified
mail on March 4, 2015. Morris then had the Midland County
Sheriff's Department complete personal service of process
on Myers on June 2, 2015, which was more than eighteen months
after she had filed suit.
the record does not reflect when Mayers was served, it does
indicate that the trial court granted her traditional and
no-evidence motion for summary judgment on February 5,
2015. Terrazas and Myers also filed separate
summary judgment motions in which they claimed the
affirmative defense of statute of limitations. Myers
questioned whether Morris exercised diligence to complete
service of process. Myers also asserted the grounds of
collateral estoppel or issue preclusion. The trial court, in
separate judgments, granted the motions on January 20, 2016,
but did not state the grounds for each of the judgments.
Morris now appeals the trial court's summary judgments in
favor of Terrazas and Myers.
Standard of Review
review a summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010);
Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d
618, 621 (Tex. 2007). The movant for traditional summary
judgment must show that there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law.
See Tex. R. Civ. P. 166a(c); Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). A defendant who moves for traditional
summary judgment must either negate at least one essential
element of the nonmovant's cause of action or prove all
essential elements of an affirmative defense.
Randall's Food Mkts., Inc. v. Johnson, 891
S.W.2d 640, 644 (Tex. 1995). When a party moves for summary
judgment on traditional grounds, we take the evidence adduced
in favor of the nonmovant as true and draw every reasonable
inference and resolve all doubts in the nonmovant's
favor. Id. (citing El Chico Corp. v. Poole,
732 S.W.2d 306, 315 (Tex. 1987)).
the defendant establishes a right to summary judgment as a
matter of law, the burden shifts to the plaintiff to present
evidence that raises a genuine issue of material fact.
City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678-79 (Tex. 1979); Plunkett v. Conn. Gen.
Life Ins. Co., No. 11-13-00129-CV, 2015 WL 3484985, at
*4 (Tex. App.-Eastland May 29, 2015, pet. denied) (mem. op.).
Thus, if a movant establishes an affirmative defense, then
the burden of production shifts to the nonmovant.
Hofstetter v. Loya Ins. Co., No. 01-10-00104-CV,
2011 WL 1631938, at *2 (Tex. App.-Houston [1st Dist.] Apr.
28, 2011, pet. denied) (mem. op.).
the trial court's judgment does not specify the grounds
upon which it relied for its ruling, the judgment must be
affirmed if any of the theories advanced are meritorious.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
first address Morris's second and fourth issues, in which
she claims that the trial court should have granted a default
judgment in her favor because Terrazas failed to timely
answer and should have denied summary judgment in
Terrazas's and Myers's favor because she raised
questions of material fact on their liability. We will then
address her first and third issues, in which she asserts that
the district clerk erred in the issuance of citations and
service of process ...