File: 060990F - From documents
Opinion Filed November 6, 2007
Court of Appeals
District of Texas at Dallas
ALINDA FRANCINE CARTER-THOMAS, Appellant
RICKY LYNN SULLIVAN,
On Appeal from the 366th Judicial District
Trial Court Cause No.
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice FitzGerald
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
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
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.
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
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
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.
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).