Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 223rd District Court Gray County, Texas Trial
Court No. 35, 249; Honorable Phil N. Vanderpool, Presiding
QUINN, C.J., and HANCOCK and PIRTLE, JJ. 
PATRICK A. PIRTLE JUSTICE.
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.
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.
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[was] not
negligence per se."
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."
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.
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.
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.
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
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.
Two-Timeliness of Ceniceros's Response
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
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.
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