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Ceniceros v. Pletcher

Court of Appeals of Texas, Seventh District, Amarillo

June 29, 2017

JAMIE CENICEROS, APPELLANT
v.
PAUL PLETCHER, APPELLEE

         On Appeal from the 223rd District Court Gray County, Texas Trial Court No. 35, 249; Honorable Phil N. Vanderpool, Presiding

          Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. [1]

          MEMORANDUM OPINION

          PATRICK A. PIRTLE JUSTICE.

         Appellant, Jamie Ceniceros, appeals from a take-nothing judgment issued in favor of Appellee, Paul Pletcher, following the granting of his motion for summary judgment in her negligence/gross negligence cause of action. To the extent that Ceniceros's claims or causes of action can be construed as seeking recovery of exemplary damages for gross negligence, we affirm the trial court's order granting summary judgment. In all other respects, we reverse the trial court's judgment and we remand this case to the trial court for further proceedings consistent with this opinion.

         In support of her appeal, Ceniceros asserts the trial court erred by (1) granting Pletcher's motion to exclude and/or strike the testimony of her expert witness, Bob Kingsbery, (2) granting Pletcher's objections to her response based on the timeliness of its filing and denying her motion for leave to file a late response, and (3) granting Pletcher's traditional and no-evidence motion for summary judgment. Logic dictates that we initially address Ceniceros's second issue before we move on to address her first and third issues.

         Procedural Background

         On May 23, 2008, Ceniceros was driving on Farm-To-Market Road 749, near Mile Marker 82, in Gray County, Texas, at night, when she struck a black cow that was roaming at large. In July of that year, she filed an original petition alleging Pletcher, the cow's owner, was liable under the theories of negligence, gross negligence, and negligence per se. Pletcher filed a general denial and asserted several defenses to Ceniceros's claims, including a claim that "a mere violation of [Gray County's] stock law[2][was] not negligence per se."[3]

         Almost four years after suit was filed, on May 11, 2012, Pletcher filed a hybrid traditional and no-evidence motion for summary judgment asserting there was no evidence that he committed any act or omission that caused Ceniceros's injuries. He asserted that the Gray County stock law was insufficient to impose negligence per se liability and that the mere presence of livestock on a highway does not create a presumption that the owner was negligent. On May 12, the trial court sent a letter to counsel for both parties setting Pletcher's motion for summary judgment "for hearing BY SUBMISSION on Tuesday, June 28, 2012."

         On September 7, 2012, Ceniceros filed a response to Pletcher's motion which included the following written documents: (1) a report entitled Analysis of the Adequacy of Fencing Regarding Incident on May 23, 2008, prepared by Kingsbery, (2) the sworn affidavit of Kingsbery, including his report and curriculum vitae, (3) a copy of Pletcher's oral deposition testimony, and (4) an unsworn copy of the Texas Peace Officer's Crash Report. On September 18, Pletcher filed an objection and reply to Ceniceros's response, asserting it was untimely and should be stricken in its entirety because she failed to seek leave of the court to file it. He further asserted that Kingsbery's report and affidavit, as well as the accident report, were unauthenticated hearsay. By way of response, he further contended Ceniceros had failed to raise a fact issue as to the essential elements of her claim. That same day, Pletcher filed a motion to exclude and/or strike the affidavit and report of Kingsbery on the basis that he was not qualified to give his proffered opinion and that his testimony was conclusory and lacking in factual support. Ceniceros responded to Pletcher's motion to exclude on November 13, 2012.

         On February 19, 2013, Pletcher supplemented his traditional and no-evidence motion for summary judgment by asserting, for the first time, that Gray County's stock law was invalid. On February 21, the trial court issued a new order setting the original and supplemental motions for summary judgment for hearing "by submission only" on March 21, 2013. Seven days prior to that submission date, on March 14, Ceniceros filed a response asking the court to deny both the original motion for summary judgment and the supplement.

         More than two years after that, on October 19, 2015, the trial court set Pletcher's motion to exclude and/or strike Kingsbery's testimony for a hearing "by submission only" on October 27. The letter advising counsel of the submission date specifically permitted both parties to supplement their pleadings. At the same time, the trial court indicated that it would issue its ruling on the motion to exclude and/or strike Kingsbery's testimony "simultaneously" with its ruling on Pletcher's original and supplemental motions for summary judgment.

         On October 26, 2015, Ceniceros filed her motion for leave of court for the late filing of her September 7, 2012 response to Pletcher's original motion for summary judgment. In that motion, Ceniceros's counsel asserted by affidavit that the response was not filed until that date due to a miscommunication in his office. On October 27, Ceniceros filed a supplemental response to Pletcher's motion to exclude and/or strike Kingsbery's testimony, and on October 29, Pletcher requested a formal hearing on that motion.

          On November 2, without conducting a formal hearing on any of the pending motions, the trial court issued four orders: one, denying Ceniceros's motion for leave of court for the late filing of her response to Pletcher's motion for summary judgment; another, granting Pletcher's motion to exclude and/or strike Kingsbery's testimony; another, granting Pletcher's objections to three of the four exhibits attached to Ceniceros's response to his motion for summary judgment; and, a final order, granting Pletcher's traditional and no-evidence motion for summary judgment, as well as his supplement to that motion. Simultaneous with the issuance of these four orders, the trial court entered a "take-nothing" judgment in Pletcher's favor. This appeal followed.

         Issue Two-Timeliness of Ceniceros's Response

         By her second issue, Ceniceros asserts the trial court erred by denying her motion for leave to file a late response and by granting Pletcher's objections to her response based on the untimeliness because (1) the objection to the timeliness of her response became moot when the trial court reset the submission date and (2) Pletcher waived any objection to the late filing when he filed his supplement to the original motion. We agree the trial court erred by denying her motion for leave to file a late response and by granting Pletcher's objections to her response based on untimeliness.

         In the context of an objection to the timeliness of a summary judgment response, the trial court's rulings are reviewed under an abuse of discretion standard. Crooks v. Moses, 138 S.W.3d 629, 635 (Tex. App.-Dallas 2004, no pet.). An abuse of discretion exists when a court's decision is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

         Here, Pletcher's motion for summary judgment was originally set for submission on June 28, 2012. At that time, the trial court took no action on the motion. Ceniceros later filed a response and Pletcher filed an objection to that response, contending, in part, that the response was untimely filed. Pletcher also subsequently filed a supplement to his summary judgment motion and obtained a new submission date for March 21, 2015. By setting a new submission date without first ruling on Pletcher's pending objection to Ceniceros's response, the trial court reopened the time frame for filing a response, thereby rendering moot Pletcher's objection to timeliness of the original response. See Glover v. Berleth, No. 01-09-00679-CV, 2012 Tex.App. LEXIS 274, at *10 (Tex. App.-Houston [1st Dist.] Jan. 12, 2012, no pet.) (finding that once an original summary judgment hearing date is rescheduled, the non-moving party has "seven days ...


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