Opinion filed May 30, 2014




                                    In The


        Eleventh Court of Appeals
                                 __________

                             No. 11-12-00112-CV
                                 __________

                         BOBBY BOWEN, Appellant
                                       V.
   ROBERT E. WHITE AND CHILDS, BISHOP & WHITE, PC,
                      Appellees


                     On Appeal from the 70th District Court
                             Ector County, Texas
                       Trial Court Cause No. A-119,070


                     MEMORANDUM OPINION
      This is an appeal from a take-nothing summary judgment in a legal
malpractice suit. Attorney Robert E. White and the law firm of Childs, Bishop &
White, PC (referred to collectively in this opinion as “White”) had represented
Bobby Bowen in a personal injury case involving a vehicle collision. After
Bowen’s claims for personal injury against the driver and the owner of the vehicle
that collided with Bowen were dismissed, Bowen filed a malpractice suit against
White in which Bowen asserted claims for negligence and gross negligence. White
moved for summary judgment on traditional and no-evidence grounds. The trial
court granted White’s motion. We reverse and remand in part and affirm in part.
                                             Issues
       Bowen presents two issues on appeal. In the first issue, he argues that the
trial court erred when it sustained White’s objection to Bowen’s summary
judgment evidence. In his second issue, Bowen contends that the trial court erred
in granting White’s motion for summary judgment.
                             Summary Judgment Evidence
       The first issue relates to the affidavit that Bowen filed in response to White’s
motion for summary judgment. The “affidavit” attached to the response and sent
to opposing counsel was not notarized and did not contain Bowen’s signature.
The response and its attachments were filed in the district clerk’s office on the
morning of March 7, 2012. Later that day, Bowen filed in the district clerk’s office
another copy of the affidavit; the separately filed affidavit was signed by Bowen
and properly notarized.
       White objected to Bowen’s summary judgment evidence and asked that
Bowen’s affidavit be struck because it was not signed and notarized.             Upon
determining that the affidavit was “unsigned and/or unverified” and that it was
“untimely filed,” the trial court sustained White’s objection. On appeal, Bowen
addresses the lack of signature and notarization, but he does not address the
timeliness of the filing of his affidavit.
       The record supports the trial court’s finding that Bowen’s affidavit was not
timely filed. Rule 166a(c) of the Texas Rules of Civil Procedure provides: “Except
on leave of court, the adverse party, not later than seven days prior to the day of
hearing may file and serve opposing affidavits or other written response.”
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Summary judgment evidence may be filed late “only with leave of court.”
Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). White filed the
motion for summary judgment on November 7, 2011. Bowen’s response and
affidavit were filed in the trial court on March 7, 2012. The record and the trial
court’s docket sheet reflect that the hearing on the motion for summary judgment
was conducted on March 13, 2012, and that Bowen did not obtain leave of court
when he filed his response and affidavit less than seven days prior to the date of
the hearing. Therefore, the trial court did not err in refusing to consider Bowen’s
affidavit because it “was not properly before the trial court.” See id. Bowen’s first
issue is overruled.
                          Traditional Summary Judgment
      White sought a traditional summary judgment with respect to Bowen’s
negligence cause of action. In the motion, White asserted that Bowen’s negligence
claim was barred by collateral estoppel and the one-satisfaction rule because
Bowen had already sued the automobile liability carriers and had been awarded
damages for his injuries from the accident. In support of this contention, White
attached a judgment signed on March 22, 2011, in cause no. D-115,069 in the
358th District Court of Ector County in which Bowen was awarded damages of
$20,000 against State Farm Mutual Insurance Company under its uninsured
motorists coverage of the vehicle that was being driven by Bowen at the time of
the collision.
      At the time that White filed the motion for summary judgment and at the
time that the trial court in this cause rendered summary judgment in favor of
White, the judgment in trial court cause no. D-115,069 against State Farm retained
its preclusive effects against Bowen, such as collateral estoppel, res judicata, and
the one-satisfaction rule. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5–6
(Tex. 1986). However, the judgment of the trial court in cause no. D-115,069 was
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reversed on direct appeal to this court. State Farm Mut. Auto. Ins. Co. v. Bowen,
406 S.W.3d 182 (Tex. App.—Eastland 2013, no pet.). In that appeal, we rendered
judgment that Bowen take nothing from State Farm.            Id. at 186.    Bowen’s
judgment against State Farm has thus been annulled. See Butler v. Eaton, 141 U.S.
240, 243 (1891); see also Watson v. Houston Indep. Sch. Dist., No. 01-04-01116-
CV, 2005 WL 3315254, at *1 & n.2 (Tex. App.—Houston [1st Dist.] Dec. 8, 2005,
no pet.) (mem. op.) (taking judicial notice of sister court’s reversal of earlier
judgment that was relied upon in subsequent case to establish affirmative defense
of res judicata and recognizing that earlier judgment “is no longer a final judgment
because a reversed judgment is generally nullified”).
      “A judgment in a second case based on the preclusive effects of a prior
judgment should not stand if the first judgment is reversed.” Scurlock Oil, 724
S.W.2d at 6 (citing Butler, 141 U.S. at 243).        In Butler, the Supreme Court
exercised “judicial knowledge” of its reversal of an earlier trial court judgment that
was relied upon as a basis for “estoppel or bar” by the trial court in a subsequent
judgment. 141 U.S. at 241, 244. In the appeal of the subsequent judgment, the
Supreme Court, having reversed the earlier judgment, recognized the “total present
insufficiency of the ground” that supported the subsequent judgment. Id. at 243.
Similarly, our sister court took judicial notice of the reversal on appeal of a
judgment that had been relied upon as the basis for the defendant’s assertion of res
judicata in Watson. Likewise, we take judicial notice of our opinion and judgment
in State Farm in which we reversed the judgment that was relied upon in this case
by White as support for White’s defenses of collateral estoppel and one satisfaction
as asserted in the motion for summary judgment. Because collateral estoppel and
one satisfaction were the only two grounds upon which White moved for summary
judgment on Bowen’s negligence claims, we must reverse that portion of the
summary judgment granting White’s traditional motion for summary judgment.
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Bowen’s second issue is sustained with respect to the negligence cause of action.
                         No-Evidence Summary Judgment
      White moved for summary judgment on no-evidence grounds with respect to
Bowen’s cause of action for gross negligence. In the motion, White asserted that
there was no evidence that White was grossly negligent in the representation of
Bowen because there was no evidence that White’s acts or omissions involved an
extreme degree of risk, no evidence that White was aware of the risk, and no
evidence that White proceeded with conscious indifference. See TEX. CIV. PRAC.
& REM. CODE ANN. § 41.001(11) (West 2008); Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225 (Tex. 2004) (components of gross negligence).
      A no-evidence summary judgment motion made pursuant to TEX. R.
CIV. P. 166a(i) is essentially a motion for a pretrial directed verdict. Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). Once such a motion is filed, the
burden shifts to the nonmoving party to present evidence raising a genuine issue of
material fact as to the elements specified in the motion. Tamez, 206 S.W.3d at
582; W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). We review the
summary judgment evidence in the light most favorable to the party against whom
the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could and disregarding contrary evidence unless reasonable
jurors could not. Tamez, 206 S.W.3d at 582; see Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 756 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). An appellate court reviewing a summary judgment must
consider whether reasonable and fair-minded jurors could differ in their
conclusions in light of all of the evidence presented. Mayes, 236 S.W.3d at 755;
City of Keller, 168 S.W.3d at 827.
      The only summary judgment evidence presented by Bowen in response to
White’s motion for summary judgment was the affidavit of Bowen that was struck
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by the trial court and two pages from two automobile policy packets that indicated
that the driver and the owner of the vehicle that collided with Bowen had liability
insurance. Bowen failed to present any summary judgment evidence relating to the
elements of gross negligence upon which White based the no-evidence motion for
summary judgment. We hold, therefore, that Bowen failed to meet his burden
under Rule 166a(i) to raise a genuine issue of material fact as to the elements of
gross negligence that were specified in White’s no-evidence motion. Bowen’s
second issue is overruled insofar as it challenges the trial court’s grant of White’s
no-evidence motion for summary judgment on the gross negligence cause of
action.
                                   This Court’s Ruling
      We reverse the judgment of the trial court insofar as it entered a take-nothing
summary judgment on the negligence cause of action asserted by Bowen against
White. We affirm the judgment of the trial court in all other respects, including its
entry of a take-nothing summary judgment against Bowen on his gross negligence
cause of action. The cause is remanded for further proceedings.




                                                     JOHN M. BAILEY
                                                     JUSTICE


May 30, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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