File: 060990F - From documents transmitted: 11/09/2007
AFFIRM and Opinion Filed November 6, 2007

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-06-00990-CV
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-00036-06
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice FitzGerald
        Alinda Francine Carter-Thomas appeals a take-nothing summary judgment entered in this personal injury case. Carter-Thomas, appearing pro se in this Court as she did below, argues generally that she is entitled to a trial on the merits of her negligence claims against appellee Ricky Lynn Sullivan. For the reasons explained below, we affirm the trial court's judgment.
        Carter-Thomas alleges she suffered disabling injuries in a motor vehicle accident that was proximately caused by Sullivan's negligence. Sullivan moved for summary judgment arguing (1) deemed admissions established that Carter-Thomas's own negligence was the cause of the accident and her injuries, if any, and (2) Carter-Thomas could offer no evidence of damages. Carter-Thomas filed a response to the motion, but the response contained no sworn testimony or evidence in admissible form. The trial judge heard the motion and granted it; he subsequently heard and denied a motion for reconsideration. Carter-Thomas appeals.
        We review summary judgment motions - both traditional and no-evidence - under well- settled standards. In a traditional motion, the party moving for summary judgment has the burden of showing there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A defendant moving for a traditional summary judgment has the burden of proving all essential elements of his defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.). If the nonmovant fails to do so, the trial judge must grant the motion. Id.
        In this case, Sullivan sought to prove his right to summary judgment through deemed admissions. The record establishes Sullivan sent his requests for admission to Carter-Thomas by regular and certified mail on February 13, 2006. Carter-Thomas was required to serve her written response on Sullivan thirty days after that service. See Tex. R. Civ. P. 198.2(a). She did not serve her response until April 4, 2006.   See Footnote 1  If a response to a request for admission is not timely served, the request is considered admitted without the necessity of a court order. Tex. R. Civ. P. 198.2(c). Among the statements deemed admitted by Carter-Thomas's failure to serve a timely response were concessions that her own conduct at the time of the accident was negligent and was a proximate cause of her injuries, but Sullivan's conduct was not negligent. Carter-Thomas never attempted to withdraw or amend the admissions. See Tex. R. Civ. P. 198.3. Thus, Sullivan established his right to summary judgment on his traditional ground. See Tex. R. Civ. P. 166a(c) (summary judgment appropriate when admissions show there is no genuine issue as to any material fact and moving party is entitled to judgment as matter of law).
        Moreover, on Sullivan's no-evidence ground, Carter-Thomas failed to come forward with any summary judgment evidence of her damages in admissible form. She failed to raise a genuine issue of material fact in this proceeding. Thus, summary judgment was appropriate on this ground as well. See Tex. R. Civ. P. 166a(i) (summary judgment appropriate unless respondent produces summary judgment evidence raising genuine issue of material fact).
        We affirm the trial court's judgment.   See Footnote 2 

                                                          KERRY P. FITZGERALD

Footnote 1 Despite Carter-Thomas's argument to the contrary, nothing in the record indicates Sullivan agreed to extend her deadline to respond to the requests for admission.

Footnote 2 To the extent Carter-Thomas's brief addresses other issues, they were not preserved below and are inadequately briefed in this Court. They present nothing for our review. See McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.-Dallas 2001) (pet. denied).

File Date[11/09/2007]
File Name[060990F]
File Locator[11/09/2007-060990F]