                           NUMBER 13-12-00719-CV

                           COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ENRIQUETA CASTILLO, ET AL.,                                            Appellants,


                                          v.


MIZPAH RESIDENTIAL CARE,
D/B/A LA FAMILIA ADULT DAY
CARE,                                                                     Appellee.


                  On appeal from the 445th District Court
                       of Cameron County, Texas.


                        MEMORANDUM OPINION

            Before Justices Benavides, Perkes, and Longoria
               Memorandum Opinion by Justice Longoria

      Plaintiffs, Mario Alberto Castillo and Enriqueta Castillo, filed this suit against

defendants, Mizpah Residential Care d/b/a La Familia Adult Day Care (“Mizpah”) and
Refugia L. Barrera, after plaintiffs were injured in a collision that occurred between two

automobiles in Harlingen, Texas on November 11, 2009. At the time of the collision,

plaintiffs were clients of Mizpah, a provider of adult day care services, which was

transporting plaintiffs in a minivan. Barrera was driving a second vehicle in the opposite

direction on East Grimes Street. It is undisputed that Barrera entered the intersection of

East Grimes Street and 13th Street and was attempting to make a left turn onto 13th

Street when her vehicle struck the left front side of Mizpah’s van. Plaintiffs suffered

serious personal injuries in the collision and were taken to a hospital for emergency

medical care.

      Plaintiffs subsequently sued Mizpah and Barrera. Plaintiffs settled their claims

against Barrera for $40,000.00, leaving Mizpah as the only defendant. After the discovery

period set by the trial court in its pretrial scheduling order had been completed, Mizpah

moved for summary judgment in a hybrid motion in which it asserted both no evidence

and traditional grounds. See TEX. R. CIV. P. 166a(c), (i). Thereafter, plaintiffs filed a

verified motion for continuance seeking additional time to conduct further discovery. See

TEX. R. CIV. P. 251. On June 25, 2012, the date originally scheduled for a jury trial, the

trial court entered a new pretrial scheduling order that granted the relief plaintiffs

requested in their verified motion for continuance by ordering the discovery period

(previously concluded on May 25, 2012) reopened, extending the time for discovery until

October 12, 2012, setting new pretrial deadlines, and setting November 13, 2012 as the

new trial date. The order stated that “no further continuances” would be granted. See

TEX. R. CIV. P. 166a(g).




                                            2
       Although the trial court granted the continuance for the express purpose of allowing

additional discovery to be conducted, the trial court’s order did not refer to or purport to

continue or postpone the previously set submission date of August 8, 2012 for Mizpah’s

hybrid motion for summary judgment. See id. With leave of court, plaintiffs filed a late

written response to the hybrid motion with evidence attached. See TEX. R. CIV. P. 166a(c).

In their response, plaintiffs objected that Mizpah had moved for summary judgment on no

evidence grounds “prematurely” in light of the continuance granted by the trial court on

June 25, 2012. See TEX. R. CIV. P. 166a(i). Plaintiffs did not make a similar objection to

the traditional grounds asserted in the motion. See TEX. R. CIV. P. 166a(c). Over plaintiffs’

objections to the no evidence grounds, the trial court heard Mizpah’s hybrid motion on

August 21, 2012, and thereafter, it entered an order granting the motion in all respects.

See TEX. R. CIV. P. 166a(c), (i).

       On appeal, plaintiffs raise three issues, which we will reorder and address as five

issues, in which they contend that the trial court erred in granting summary judgment for

the following reasons: (1) there had not been adequate time for discovery when Mizpah

moved for summary judgment on no evidence grounds; (2) Mizpah did not negate the

alleged existence of its legal duty to exercise reasonable care while using its vehicle to

transport disabled clients, such as plaintiffs, who were under its care and supervision as

a provider of adult day care services; (3) Mizpah did not negate the element of proximate

cause; (4) plaintiffs produced more than a scintilla of evidence that Mizpah’s negligence

caused plaintiffs to sustain serious personal injuries; and (5) there is a genuine issue of

material fact regarding whether plaintiff Enriqueta Castillo was secured by a seat belt at

the time of the collision.



                                             3
        For the reasons set forth in greater detail below, we reverse the trial court’s

summary judgment based on plaintiffs’ first, second, and third issues. First, we agree

that Mizpah moved for summary judgment on no evidence grounds before “adequate time

for discovery” in violation of Rule 166a(i) of the Texas Rules of Civil Procedure. T EX. R.

CIV. P. 166a(i) (authorizing a party to “move for summary judgment on the ground that

there is no evidence” only “[a]fter adequate time for discovery”). Therefore, the trial court

erred in granting the summary judgment on the no evidence grounds. See id. Second,

by its traditional grounds for summary judgment, Mizpah did not negate the alleged

existence of its duty to use reasonable care in transporting plaintiffs in its vehicle. See

TEX. R. CIV. P. 166a(c). Third, by its traditional grounds for summary judgment, Mizpah

did not negate the element of proximate cause. See id. Therefore, the trial court erred

in granting the traditional summary judgment. See id. Accordingly, we reverse the

summary judgment and remand the case to the trial court for further proceedings

consistent with this opinion.1

                                 I. NO EVIDENCE SUMMARY JUDGMENT

        In their first issue, plaintiffs contend that the trial court erred by granting summary

judgment on the no evidence grounds Mizpah asserted in its hybrid motion because

Mizpah moved for summary judgment on no evidence grounds before there had been

“adequate time for discovery.” TEX. R. CIV. P. 166a(i).2

A. Applicable Law


        1
          Having concluded that plaintiffs have established reversible error by their first three issues, we do
not reach plaintiffs’ fourth or fifth issues. See TEX. R. APP. P. 47.1.
        2   When, as in this case, a “motion for summary judgment present[s] both no-evidence and
traditional grounds, we first review the propriety of the summary judgment under the no-evidence standards
of [R]ule 166a(i).” Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet.
denied).

                                                      4
       “Under Rule 166a(i), a party may move for summary judgment on the ground that

there is no evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof at trial.” W. Invs., Inc. v. Urena, 162 S.W.3d

547, 550 (Tex. 2005); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (“To

prevail on a no-evidence summary-judgment motion, a movant must allege that there is

no evidence of an essential element of the adverse party’s claim.”). By filing a no

evidence motion, the movant “shifts [the burden] to the . . . [non-movant] to present

enough evidence to raise a genuine issue of material fact on the challenged elements.”

Ham v. Equity Residential Mgmt. Servs., Corp., 315 S.W.3d 627, 631 (Tex. App.—Dallas

2010, pet. denied).    “Unless the respondent produces summary judgment evidence

raising a genuine issue of material fact, the court must grant the motion.” W. Invs., Inc.,

162 S.W.3d at 550; Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (“Absent a timely response, a trial court must grant a

no-evidence motion for summary judgment that meets the requirements of Rule 166a(i).”);

Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.—Corpus Christi 2001, no pet.) (“Failure

to respond to a no-evidence motion is fatal.”).

       A party may move for summary judgment on no evidence grounds only “[a]fter

adequate time for discovery.” TEX. R. CIV. P. 166a(i). The official comment to Rule 166a(i)

states that “[a] discovery period set by pretrial order should be adequate opportunity for

discovery unless there is a showing to the contrary, and ordinarily a [no evidence] motion

. . . would be permitted after the period but not before.” TEX. R. CIV. P. 166a(i) & cmt.

(1997) (emphasis added). “This comment, unlike other notes and comments in the rules

of civil procedure, was specifically intended to inform the construction and application of



                                             5
the rule.” Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 344 (Tex. App.—Corpus Christi

2003, pet. denied) (op. on reh’g).

B. Standard of Review

       “We review a trial court’s determination that there has been an adequate time for

discovery on a case-by-case basis, under an abuse-of-discretion standard.” McInnis v.

Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.). “[T]he

determination of whether there has been adequate time for discovery lies within the trial

court’s discretion, not this Court’s discretion.” Univ. of Tex. M.D. Anderson Cancer Ctr.

v. King, 329 S.W.3d 876, 884 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).

       “But the [trial] court is not vested with unlimited discretion . . . .” Womack v. Berry,

291 S.W.2d 677, 683 (Tex. 1956). Rather, the trial court “is required to exercise a sound

and legal discretion within limits created by the circumstances of the particular case.” Id.;

see also Iliff v. Iliff, 339 S.W.3d 74, 81 (Tex. 2011) (same). The trial court must exercise

its discretion to further “[t]he express purpose of the rule,” Womack, 291 S.W.2d at 683,

which in this instance, is to ensure that there is “adequate time for discovery” before a

party moves for summary judgment on no evidence grounds. TEX. R. CIV. P. 166a(i).

“[T]he ultimate purpose of discovery is to seek the truth, so that disputes may be decided

by what the facts reveal, not by what facts are concealed.” In re Colonial Pipeline Co.,

968 S.W.2d 938, 941 (Tex. 1998) (orig. proceeding) (quotations omitted).              And the

ultimate purpose of summary judgment is “to eliminate patently unmeritorious claims and

untenable defenses.” City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

n.5 (Tex. 1979).




                                              6
       “[T]he abuse of discretion standard generally ‘insulates the trial judge’s reasonable

choice from appellate second guessing.’” Samlowski v. Wooten, 332 S.W.3d 404, 410

(Tex. 2011) (quoting W. Wendell Hall, Standards of Review in Texas, 38 ST. MARY’S L.J.

47, 62 (2006)). Thus, “[i]t is not enough that the court of appeals would have decided the

dispute differently . . . .” Id. “[T]o find an abuse of discretion when factual matters are in

dispute, the reviewing court must conclude that the facts and circumstances of the case

extinguish any discretion in the matter.” Id. (quotations omitted). “A trial court therefore

abuses its discretion when it renders an arbitrary and unreasonable decision lacking

support in the facts or circumstances of the case.” Id. “Similarly, a trial court abuses its

discretion when it acts in an arbitrary or unreasonable manner without reference to

guiding rules or principles.” Id.

       “A reasonable error in judgment, however, is not an abuse of discretion.” Id. at

411. Generally, “[i]f reasonable minds may differ . . . , no clear abuse of discretion is

shown . . . .” City of Pharr v. Tippit, 616 S.W.2d 173, 176 (Tex. 1981).

C. Relevant Facts

       Plaintiffs filed this suit against Mizpah and Barrera on October 26, 2010. On May

4, 2011, plaintiffs’ counsel filed a suggestion of death stating that both plaintiffs had died.

See TEX. R. CIV. P. 151 (“Death of Plaintiff”). On August 30, 2011, plaintiffs filed a motion

for alternative service, which stated that “[s]ervice has been attempted unsuccessfully on

. . . [Mizpah’s] registered agent.” See TEX. R. CIV. P. 106 (“Method of Service”). The

motion incorporated by reference the affidavit of Roel Zamora, which was attached to the

motion and stated that on March 28, 2011, Zamora attempted to serve Mizpah’s

registered agent at Mizpah’s place of business. Zamora stated that he believed that the



                                              7
registered agent was attempting to avoid service. On August 31, 2011, the trial court

entered an order granting plaintiffs’ motion for alternative service.

       Mizpah was served with citation on September 15, 2011. Mizpah filed its original

answer on October 7, 2011. On January 4, 2012, the trial court signed and entered a

level three scheduling order stating, among other things, “that all parties must complete

all discovery, including the supplementation of discovery answers, on or before May 25,

2012” and that “trial before a jury is set for June 25, 2012 at 9:00 a.m.”

       On April 2, 2012, Mizpah filed a combined motion to dismiss and motion for

summary judgment, asserting traditional grounds based on the applicable statute of

limitations and based on plaintiffs’ purported lack of capacity. See TEX. R. CIV. P. 166a(c).

       On April 24, 2012, plaintiffs, now acting by and through their legal heirs and the

representatives of their respective estates, filed their first amended petition. See TEX. R.

CIV. P. 151. Plaintiffs alleged negligence claims against Mizpah for the personal injuries

they sustained in the collision that occurred on November 11, 2009.            According to

plaintiffs, their injuries were proximately caused by Mizpah’s negligence in (1) failing to

properly restrain plaintiffs with seat belts while transporting them in its vehicle while

plaintiffs were under its care and supervision as a provider of adult day care services, (2)

operating a motor vehicle at a speed greater than the speed at which a person of ordinary

prudence would have operated the vehicle under the same or similar circumstances, and

(3) failing to apply the brakes to the motor vehicle in a timely and prudent manner “and/or”

wholly failing to apply the brakes to avoid the collision. Plaintiffs also asserted claims

against Barrera, the driver of the second vehicle, for her alleged role in causing the

collision.



                                              8
       Also on April 24, 2012, plaintiffs filed their response to Mizpah’s combined motion

to dismiss and motion for summary judgment. On May 8, 2012, plaintiffs filed a motion

to dismiss their claims against Barrera on the grounds that the parties had settled those

claims. On May 15, 2012, the trial court entered an order of dismissal only as to the

claims asserted against Barrera, as requested by plaintiffs. On May 22, 2012, the trial

court entered an order denying Mizpah’s combined motion to dismiss and motion for

summary judgment.

       On May 25, 2012, plaintiffs filed their second amended petition. In addition to the

allegations summarized above, plaintiffs made the new allegation that Mizpah was

negligent in entering the intersection when it was not safe to do so. Plaintiffs also alleged

that Mizpah failed to properly train and supervise its employee driver or the employee in

charge of loading Mizpah’s clients into its vehicle and securing them with seat belts.

       On May 29, 2012, after the original discovery period had ended, Mizpah filed its

second motion for summary judgment, a hybrid motion, arguing, inter alia, that there was

no evidence that (1) plaintiffs were not wearing their seat belts at the time of the collision,

(2) Mizpah was negligent, or (3) any negligence by Mizpah proximately caused plaintiffs’

injuries.   Mizpah also sought summary judgment on the basis that plaintiffs, both

deceased, could not identify “what happened” during the collision. Mizpah argued further

that plaintiffs could not produce any evidence that would be admissible in light of their

purported failure to timely identify witnesses with knowledge of relevant facts. See TEX.

R. CIV. P. 193.6 (“Failing to Timely Respond – Effect on Trial”). Although the case was




                                              9
set for a jury trial to be held on June 25, 2012, a submission date of August 8, 2012 was

set for Mizpah’s hybrid motion.3

        On June 7, 2012, plaintiffs filed a verified motion for continuance. See TEX. R. CIV.

P. 251, 252. In the motion, plaintiffs asserted that Mizpah’s “driver had made new

allegations about the facts surrounding the accident which now require the [p]laintiffs to

take his deposition and locate witnesses that [p]laintiffs believe will be able to impeach

his testimony.” Additionally, plaintiffs noted that Mizpah had filed an amended “petition

to include a counter claim . . . based on Chapter[s] 9 and 10 of the Texas Civil Practice

and Remedies Code, Section 13.” According to plaintiffs, they had “not had adequate

time to review the claims made therein, specifically . . . [Mizpah] is alleging that one of the

parties, Mario Alberto Castillo was married.” Therefore, plaintiffs argued, “[i]t is necessary

that more investigation be done on this matter to obtain evidence to refute said

allegations.”

        On June 25, 2012, the date of the original trial setting, the trial court entered a

pretrial scheduling order stating, among other things, that the discovery period (previously

concluded on May 25, 2012) would be reopened, the deadline to complete discovery




         3 The appellate record does not include a copy of any written order entered by the trial court setting

a submission date of August 8, 2012 for Mizpah’s hybrid motion. Thus, we are uncertain about when
Mizpah obtained the setting. The record indicates that Mizpah may have obtained the setting on June 7,
2012. We take this from Mizpah’s response to plaintiffs’ motion for leave to file a late response to Mizpah’s
hybrid motion for summary judgment. Mizpah’s response was verified in relevant part by Mizpah’s attorney
and stated that the setting was obtained on June 7, 2012, purportedly after the trial court granted plaintiffs’
verified motion for continuance. However, the order that effectively granted plaintiffs’ verified motion for
continuance was not entered until June 25, 2012. To complicate the situation further, the order states that
the new schedule was “ordered” on June 8, 2012. The order also states that it was “signed and entered”
on June 25, 2012, and it bears a file-stamp date of June 25, 2012. Finally, we note that in the verified
portion of its response, Mizpah related that it was the court coordinator, not the trial judge, who set the
submission date of August 8, 2012 for Mizpah’s hybrid motion.

                                                     10
would be extended until October 12, 2012, a trial before a jury would be set for November

13, 2012, and “no further continuances” would be granted.

       On August 8, 2012, plaintiffs filed a written response to Mizpah’s hybrid motion

with evidence attached. In their response, plaintiffs objected to the no evidence grounds

Mizpah asserted in its hybrid motion on the basis that they were “premature[]” because

the new deadline to conduct discovery had not yet expired when Mizpah moved for

summary judgment on the no evidence grounds. On August 9, 2012, Mizpah filed a letter

brief stating, among other things, that “[i]t makes no difference that the prior discovery

deadline of May 25, 2012 has been extended until October or that trial has been reset.”

Mizpah also pointed out that plaintiffs failed to file their summary judgment response and

evidence seven days prior to the submission date. See TEX. R. CIV. P. 166a(c) (“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.”). Mizpah requested

that the trial court “not consider the response and evidence in ruling on the motion.”

       On August 15, 2012, plaintiffs filed a motion for leave, requesting the trial court’s

permission to file their response and evidence late. See id. Plaintiffs explained that their

“failure to respond seven days prior to the submission date was not intentional or a result

of conscious indifference but a result of a mistake.” Mizpah filed a response the next day,

arguing that the motion for leave should be denied. On August 21, 2012, the trial court

entered an order granting plaintiffs’ motion for leave. On the same day, the trial court

considered Mizpah’s hybrid motion and entered an order granting the motion in all

respects.

D. Discussion



                                            11
        On appeal, plaintiffs contend that the trial court erred by granting summary

judgment because Mizpah moved for summary judgment on no evidence grounds before

the end of the new discovery period scheduled in the trial court’s order entered on June

25, 2012. See TEX. R. CIV. P. 166a(i). As noted above, “the determination of whether

there has been adequate time for discovery lies within the trial court’s discretion, not this

Court’s discretion.” King, 329 S.W.3d at 884. However, the trial court’s discretion does

not extend to “determining what the law is or applying the law to the facts.” See Walker

v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“A trial court has no ‘discretion’ in

determining what the law is or applying the law to the facts.”). In reviewing determinations

of law, we give no deference to the trial court—the applicable standard of review is de

novo.    See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig.

proceeding) (“Under an abuse of discretion standard, we defer to the trial court’s factual

determinations if they are supported by evidence, but we review the trial court’s legal

determinations de novo.”).

        In its pretrial scheduling order signed and entered on January 4, 2012, the trial

court determined that the period ending on May 25, 2012 would be adequate time for

discovery. See TEX. R. CIV. P. 166a(i) & cmt. (“A discovery period set by pretrial order

should be adequate opportunity for discovery unless there is a showing to the contrary .

. . .”). On May 29, 2012, after the scheduled discovery period had ended, Mizpah moved

for summary judgment in a hybrid motion asserting both traditional and no evidence

grounds. See TEX. R. CIV. P. 166a(c), (i). Thereafter, as set forth in footnote 3, the court

coordinator set a submission date of August 8, 2012 for Mizpah’s hybrid motion, even




                                             12
though it appears that at that time, a jury trial was still technically scheduled for June 25,

2012.

        Plaintiffs then sought and obtained a continuance to conduct further discovery

regarding what happened during the collision. See TEX. R. CIV. P. 251. This discovery

was reasonably calculated to obtain evidence responsive to Mizpah’s hybrid motion,

particularly, the no evidence grounds asserted in the motion. Specifically, plaintiffs sought

to obtain evidence regarding statements made by the Mizpah employee who was

operating its minivan at the time of the collision regarding what happened during the

collision. Plaintiffs also requested additional time to locate other fact witnesses who could

support their case.

        On June 25, 2012, the date of the original trial setting, the trial court signed and

entered a written pretrial scheduling order that reopened discovery, gave the parties until

October 12, 2012 to complete discovery, set new pretrial deadlines, and reset the trial

date to November 13, 2012. In its order, the trial court did not purport to continue or

otherwise postpone the previously scheduled submission date of August 8, 2012 for

Mizpah’s hybrid motion. The order did not mention or refer to the motion. However, the

order stated that “no further continuances” would be granted. See TEX. R. CIV. P. 166a(g).

        Inherent in the trial court’s order entered on June 25, 2012 is an implied finding

that as of June 25, 2012, there had not been adequate time for discovery. See TEX. R.

CIV. P. 166a(i). We defer to that finding because it is supported by the relevant facts and

circumstances of the case as detailed above and as set forth in plaintiffs’ verified motion

for continuance. See Iliff, 339 S.W.3d at 81. Given the trial court’s finding that there had

not been adequate time for discovery as of June 25, 2012, it necessarily follows that there



                                             13
could not have been adequate time for discovery roughly one month earlier, on May 29,

2012, when Mizpah moved for summary judgment on no evidence grounds. See TEX. R.

CIV. P. 166a(i). The only reasonable conclusion supported by the record is that Mizpah

moved for summary judgment on no evidence grounds before adequate time for

discovery. See id. If so, the trial court erred by considering and granting the summary

judgment on the no evidence grounds Mizpah asserted in the hybrid motion. See id.

       We note that plaintiffs filed a late response to the hybrid motion, with leave of court,

on August 8, 2012. In their response, plaintiffs advised the trial court that Mizpah had

moved for summary judgment on no evidence grounds “prematurely” because it filed the

hybrid motion on May 29, 2012. Plaintiffs pointed out that on June 25, 2012, the trial court

granted plaintiffs’ verified motion for continuance by entering a new pretrial scheduling

order that, among other things, reopened the discovery period (previously concluded on

May 25, 2012), extended the time for discovery until October 12, 2012, set various new

pretrial deadlines, reset the trial date to November 13, 2012, and stated that “no further

continuances” would be granted.

       In a letter brief filed on August 9, 2012, Mizpah argued that “[i]t makes no difference

that the prior discovery deadline of May 25, 2012 ha[d] been extended until October or

that trial ha[d] been reset.” Mizpah also argued that “there ha[d] been adequate time for

discovery” because this “[s]uit ha[d] been on file more than 20 months and considerable

written discovery ha[d] been propounded and answered.” Mizpah’s letter brief was not

verified or supported by any affidavits.

       On August 21, 2012, the trial court entered an order granting plaintiffs’ motion for

leave. On the same day, the trial court considered Mizpah’s hybrid motion and plaintiffs’



                                             14
response and entered an order granting the motion in all respects. Although the trial

court’s order stated that the motion was “granted in all respects,” the basis for the trial

court’s ruling is unclear. In granting the summary judgment on the no evidence grounds

asserted by Mizpah, we believe the trial court did one of two things: either it determined

that there had been adequate time for discovery, contrary to its June 25, 2012 order, or it

concluded that adequate time for discovery was not required.                       Again, because the

rationale for the trial court’s ruling is unclear, we will address both possibilities.

        First, and most likely, in our view, the trial court might have determined that there

had been adequate time for discovery, contrary to its June 25, 2012 order.                             This

determination involves a factual inquiry that is “case-specific.” McClure v. Attebury, 20

S.W.3d 722, 729 (Tex. App.—Amarillo 1999, no pet.). Courts have identified a number

of nonexclusive factors that may be considered by the reviewing court in applying the

abuse of discretion standard to this determination. See King, 329 S.W.3d at 884.4 “In

applying the abuse of discretion standard, reviewing courts defer to the trial court’s factual

determinations; a reviewing court does not engage in its own factual review, but decides

whether the record supports the trial court’s resolution of factual matters.” State v.

$217,590.00 in United States Currency, 18 S.W.3d 631, 633–34 (Tex. 2000). “If the




        4  See McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“In
considering whether the trial court permitted an adequate time for discovery, we consider the following
factors: (1) the nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence
motion, (3) the length of time the case was active, (4) the amount of time the no-evidence motion was on
file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery that
already had taken place, and (7) whether the discovery deadlines in place were specific or vague.”); see
also D.R. Horton-Tex. Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort Worth
2013, no pet.) (citing McInnis and listing the same seven factors); In re Guardianship of Patlan, 350 S.W.3d
189, 196 (Tex. App.—San Antonio 2011, no pet.) (same); Univ. of Tex. M.D. Anderson Cancer Ctr. v. King,
329 S.W.3d 876, 884 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (same).

                                                    15
record supports the trial court’s evidentiary findings, the reviewing court is not at liberty to

disturb them.” Id. at 634.

       As set forth in footnote 3, it appears that the court coordinator for the trial court set

the August 8, 2012 submission date for Mizpah’s hybrid motion. Ultimately, however, the

decision to consider the no evidence grounds asserted in the motion rested with the trial

court. And the trial court made that decision on August 21, 2012, after Mizpah’s hybrid

motion was submitted for decision and after plaintiffs filed their late response, with leave

of court, objecting that Mizpah had moved for summary judgment on no evidence grounds

“prematurely.”

       The apparent basis for the trial court’s decision to consider the no evidence

grounds asserted in Mizpah’s hybrid motion was the letter brief Mizpah filed on August 9,

2012, in which counsel for Mizpah stated that “[i]t makes no difference that the prior

discovery deadline of May 25, 2012 ha[d] been extended until October or that trial ha[d]

been reset.” Counsel also argued that “there ha[d] been adequate time for discovery”

because this “[s]uit ha[d] been on file more than 20 months and considerable written

discovery ha[d] been propounded and answered.” We will address each of the foregoing

assertions in our analysis.

       As a preliminary matter, we disagree with counsel’s assertion that “[i]t makes no

difference that the prior discovery deadline of May 25, 2012 ha[d] been extended until

October or that trial ha[d] been reset.” Rule 166a(i) requires “adequate time for discovery”

before a party may move for summary judgment on no evidence grounds. TEX. R. CIV. P.

166a(i). In this case, after Mizpah moved for summary judgment on no evidence grounds,

plaintiffs filed a verified motion for continuance seeking additional time to conduct further



                                              16
discovery. See TEX. R. CIV. P. 251. The Texas Supreme Court has identified this as a

key factor when reviewing the adequacy of the time for discovery. See, e.g., Tenneco

Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (“When a party contends that

it has not had an adequate opportunity for discovery before a summary judgment hearing,

it must file either an affidavit explaining the need for further discovery or a verified motion

for continuance.”) (citing, inter alia, TEX. R. CIV. P. 166a(g)). Therefore, we consider

plaintiffs’ verified motion for continuance in our analysis, and we also take into

consideration the fact that in response to plaintiffs’ motion, the trial court entered a new

pretrial scheduling order, reopened discovery, set a new discovery deadline, set other

new pretrial deadlines, and reset the trial date—all to allow further discovery after the

originally scheduled discovery period had ended and after Mizpah had moved for

summary judgment on no evidence grounds. Based on the foregoing, we conclude that

inherent in the trial court’s June 25, 2012 order is an implied finding that there had not

been adequate time for discovery when Mizpah moved for summary judgment on no

evidence grounds on May 29, 2012. See TEX. R. CIV. P. 166a(i). Accordingly, we reject

Mizpah’s contention that “[i]t makes no difference that the prior discovery deadline of May

25, 2012 ha[d] been extended until October or that trial ha[d] been reset.”

       In its letter brief, Mizpah also argued that there had been adequate time for

discovery because this “[s]uit ha[d] been on file more than 20 months” and “considerable”

discovery had been propounded and answered. As noted above, Mizpah did not provide

the trial court with any evidentiary support for these assertions. We recognize that the

trial court was free to take judicial notice of the pleadings and could thereby determine

how long the suit had been on file. See Tex. Dep’t of Pub. Safety v. Claudio, 133 S.W.3d



                                              17
630, 633 (Tex. App.—Corpus Christi 2002, no pet.) (“A court may properly take judicial

notice of pleadings that have been filed.”).                  However, counsel’s statement that

“considerable” discovery had been propounded and answered was conclusory and

unsubstantiated by any evidence. Thus, it was not a valid basis for the trial court to

exercise its discretion. See Seung Ok Lee v. Ki Pong Na, 198 S.W.3d 492, 495 (Tex.

App.—Dallas 2006, no pet.) (“Unsubstantiated, conclusory allegations in a motion or in

argument by counsel are insufficient.”). As a result, we must decide whether the length

of time the suit was on file was a sufficient basis for the trial court to determine that there

had been adequate time for discovery when Mizpah moved for summary judgment on no

evidence grounds on May 29, 2012.

        In addressing this issue, we begin by noting that many, if not most, intermediate

courts of appeals in Texas have “refused to read into the rule a bright-line requirement

that the discovery period be completed before a no-evidence motion can be filed.”

Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.—Dallas 2005, no pet.).

According to these courts, the language of the rule itself “reflects that a more flexible

approach was intended.” Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339

(Tex. App.—Dallas 2002, no pet.).5 The rationale for this thinking is that the text of the

rule requires “adequate time for discovery,” not that discovery be completed. See, e.g.,




        5
           One court noted that the approach was so flexible that “[n]o Texas appellate court has overturned
a no-evidence summary judgment on the ground that adequate time for discovery had not passed.”
Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.—San Antonio 2001, pet. denied). While
that statement might have been true when it was made in 2001, such decisions have been rendered since
that time. See, e.g., Gutierrez v. Vermeer Mfg. Co., No. 14-08-00997-CV, 2010 WL 1486969, at *3 (Tex.
App.—Houston [14th Dist.] April 15, 2010, no pet.) (mem. op.) (holding in a case that had been on file for a
“significant amount of time,” that the trial court erred by granting no evidence summary judgment because
defendant moved for summary judgment twenty-nine days after plaintiff obtained a continuance to complete
discovery and thus before adequate time for discovery).

                                                    18
id. (“Neither [R]ule 166a(i) nor the comment thereto states that the discovery period . . .

must have ended before a no-evidence summary judgment may be granted.”).

       As noted above in footnote 4, courts have enumerated a nonexclusive list of factors

that are relevant to the adequacy of the time for discovery; however, the length of time a

suit was on file is not one of the factors specifically listed in the most frequently cited

opinions. See, e.g., McInnis, 261 S.W.3d at 200. Instead, the courts have considered

“the length of time the case was active,” which in some instances, will be different than

the length of time the suit was on file. See, e.g., id. However, we recognize that the

factors identified by the courts are nonexclusive. Furthermore, in an appropriate case,

the length of time the suit has been on file may be a relevant factor. See McClure, 20

S.W.3d at 730 (listing the date the suit was filed among other relevant factors). Some

courts applying the nonexclusive list of factors have referred to the “period of time the

case had been pending” and commented that “the rules do not mandate a minimum

period of time a case must be pending before a [no evidence] motion may be filed.” See,

e.g., Rest. Teams Int’l, 95 S.W.3d at 340.

       Overall, however, in reviewing the adequacy of the time for discovery, the

intermediate courts of appeals have considered the relevant facts and circumstances of

the case, not merely the length of time the case has been on file or how long it has been

active. See, e.g., Dickson Const., Inc. v. Fid. & Deposit Co. of Md., 5 S.W.3d 353, 357

(Tex. App.—Texarkana 1999, pet. denied) (considering the length of time the case has

been active in the trial court and the nature of the evidence necessary to controvert the

no evidence motion for summary judgment in determining that there was adequate time

for discovery).



                                             19
       Although we believe this approach is correct, we also believe there is one factor in

particular that “ordinarily” must be given more weight than the others. T EX. R. CIV. P.

166a(i) cmt. This is the discovery period scheduled by the trial court in a pretrial order.

It is a uniquely significant factor. See McInnis, 261 S.W.3d at 203 (“Ordinarily, however,

the deadline specified in the docket control order is the best indicator [of whether there

has been adequate time for discovery].”). It is the only factor expressly mentioned in the

official comment to Rule 166a(i). See TEX. R. CIV. P. 166a(i) cmt. Furthermore, affording

due weight to this factor advances the fair and orderly administration of justice by giving

effect to “[t]he express purpose of the rule,” Womack, 291 S.W.2d at 683, which is to

ensure that there is “adequate time for discovery” before a party moves for summary

judgment on no evidence grounds. TEX. R. CIV. P. 166a(i). This approach also balances

the “the ultimate purpose of discovery[, which] is to seek the truth,” In re Colonial Pipeline

Co., 968 S.W.2d at 941, with the ultimate purpose of summary judgment, which is “to

eliminate patently unmeritorious claims and untenable defenses.” City of Houston, 589

S.W.2d at 678 n.5. “Adherence to the deadlines in the docket control order holds the

most promise for meeting the parties’ legitimate expectations for discovery and for

promoting a fair and orderly development of the evidence.” See McInnis, 261 S.W.3d at

203. Thus, although courts have cautioned that the court ordered discovery period is not

a “conclusive measure” of the adequacy of the time for discovery, see, e.g., id., it is

“ordinarily” the best measure. TEX. R. CIV. P. 166a(i) cmt.6


       6 In 1997, when Rule 166a(i) was first promulgated, Chief Justice Thomas Phillips warned that
there was “erroneous information” being circulated about the newly created no evidence motion for
summary judgment:

       Much erroneous information about the operation and effects of the new rule has been
       bandied about in the legal press and at continuing legal education seminars, probably due
       to the timing of the rule change. The bench and bar should note that the burden will never

                                                  20
       In the absence of evidence regarding the other relevant factors that could be used

to make a showing to the contrary, we are persuaded that the discovery period scheduled

by the trial court in its pretrial order entered on June 25, 2012 was an adequate time for

discovery for purposes of Rule 166a(i). See TEX. R. CIV. P. 166a(i). In fact, the Texas

Supreme Court has suggested that “the no-evidence rule, by its very language, is to be

used following discovery.” Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d

879, 882 (Tex. 2009) (emphasis added). This further supports our conclusion that in this

case, the time set for discovery by the trial court in its pretrial scheduling order is the best

measure of the adequacy of the time for discovery. See TEX. R. CIV. P. 166a(i) cmt.

       The fact that the scheduling order was entered in response to plaintiffs’ verified

motion for continuance and after Mizpah filed its hybrid motion asserting no evidence

grounds for summary judgment indicates that additional weight should be given to this

particular factor. See Gutierrez v. Vermeer Mfg. Co., No. 14-08-00997-CV, 2010 WL

1486969, at *3 (Tex. App.—Houston [14th Dist.] Apr. 15, 2010, no pet.) (mem. op.)

(holding in a case that had been on file for a “significant amount of time,” that the trial

court erred by granting a no evidence summary judgment because the defendant moved

for summary judgment twenty-nine days after plaintiff obtained a continuance to complete

discovery and thus before adequate time for discovery). We note that none of the parties

have argued that the trial court’s order entered on June 25, 2012 was inappropriate or

erroneous in any respect. Again, given that the trial court found that further discovery




       shift to the non-movant to establish a fact issue until there has been an adequate
       opportunity for discovery, which ordinarily will not occur until after the close of any
       court ordered discovery period.

See Thomas R. Phillips, Texas Supreme Court Update, 60 TEX. B.J. 858, 861–62 (1997) (emphasis added).

                                                 21
was necessary in its June 25, 2012 order, there could not have been an adequate time

for discovery when Mizpah moved for summary judgment on no evidence grounds on

May 29, 2012.

       Based on the foregoing, we conclude that in this case, the length of time the suit

had been on file was not a sufficient basis for the trial court to determine that there had

been adequate time for discovery when Mizpah moved for summary judgment on no

evidence grounds on May 29, 2012. See TEX. R. CIV. P. 166a(i). Thus, to the extent that

the trial court’s ruling on August 21, 2012 was based on an implied finding that was

contrary to the implied finding in its June 25, 2012 order, we conclude that the trial court

abused its discretion in making the contrary finding on August 21, 2012 because it was

not supported by the facts or circumstances of the case or by any evidence.             See

Samlowski, 332 S.W.3d at 410.

       The second (and, in our view, less likely) possibility that we identified above as a

potential rationale for the trial court’s ruling was that the court might have concluded that

an adequate time for discovery was not required before a party, such as Mizpah, could

move for summary judgment on no evidence grounds. Again, it is unclear that this was

the actual rationale for the trial court’s ruling. However, we note that Rule 166a(i) leaves

no room for discretion on this point. See TEX. R. CIV. P. 166a(i). A party may not move

for summary judgment on no evidence grounds until “[a]fter adequate time for discovery.”

Id. Accordingly, to the extent that the trial court concluded otherwise, its decision was an

error of law and thus an abuse of discretion. See Walker, 827 S.W.2d at 840.

       In sum, we conclude that the trial court’s order entered on June 25, 2012

established that there had not been adequate time for discovery when Mizpah moved for



                                             22
summary judgment on no evidence grounds on May 29, 2012. Although it appears that

the trial court subsequently revisited the issue on August 21, 2012, when it considered

and granted the no evidence grounds Mizpah asserted in its hybrid motion over plaintiffs’

objections, we conclude that its decision was an abuse of discretion because there was

no basis in law or in fact to support a determination that there had been adequate time

for discovery when Mizpah moved for summary judgment on no evidence grounds on

May 29, 2012 or to support a conclusion that adequate time for discovery was not required

before Mizpah could move for summary judgment on no evidence grounds.                                          See

Samlowski, 332 S.W.3d at 410; Walker, 827 S.W.2d at 840. Accordingly, we conclude

that the trial court erred in granting the summary judgment on Mizpah’s no evidence

grounds. See TEX. R. CIV. P. 166a(i). We sustain plaintiffs’ first issue.7

                                  II. TRADITIONAL SUMMARY JUDGMENT

        In their second and third issues, plaintiffs contend that the trial court erred in

granting the summary judgment on the traditional grounds Mizpah asserted in its hybrid




        7 We   note that plaintiffs have not assigned error to the trial court’s decision to consider the traditional
grounds for summary judgment Mizpah asserted in its hybrid motion before the end of the newly scheduled
discovery period set in response to plaintiffs’ verified motion for continuance. According to Rule 166a(b),
“[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought
may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all
or any part thereof.” TEX. R. CIV. P. 166a(b) (emphasis added). However, under Rule 166a(g), the trial
court may grant a continuance of a summary judgment proceeding or even deny a motion for summary
judgment if it “appear[s] from the affidavits of a party opposing the motion that he cannot for reasons stated
present by affidavit facts essential to justify his opposition.” See TEX. R. CIV. P. 166a(g). Under such
circumstances, the trial court has authority to “refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may
make any such other order as is just.” Id. In their written response to Mizpah’s hybrid motion, plaintiffs
objected that Mizpah had asserted the no evidence grounds “prematurely,” but plaintiffs did not make a
similar objection to the traditional grounds asserted in the motion, even though the trial court had previously
granted a continuance to allow for additional discovery to be conducted. See TEX. R. CIV. P. 166a(c)
(“Issues not expressly presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.”). Accordingly, we do not address whether it was proper for
the trial court to consider the traditional grounds after granting the continuance because the issue was
waived by plaintiffs’ failure to object and by plaintiffs’ failure to raise the issue on appeal.

                                                        23
motion because Mizpah did not negate the elements of duty or proximate cause with

respect to plaintiffs’ negligence claims. See TEX. R. CIV. P. 166a(c).

A. Standard of Review

       “To prevail on a traditional summary-judgment motion, a movant must show that

no genuine issue of material fact exists and that it is entitled to judgment as a matter of

law.” Sw. Elec. Power Co., 73 S.W.3d at 215. “The burden of proof is on the movant,

and all doubts as to the existence of a genuine issue as to a material fact are resolved

against him.” Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391

S.W.2d 41, 47 (Tex. 1965). “In other words, the evidence must be viewed in the light

most favorable to the party opposing the motion.” Id.

       “[A] motion for summary judgment must itself expressly present the grounds upon

which it is made.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.

1993). “A motion must stand or fall on the grounds expressly presented in the motion.”

Id. “In determining whether grounds are expressly presented, reliance may not be placed

on briefs or summary judgment evidence.” Id. “Likewise, issues a non-movant contends

avoid the movant’s entitlement to summary judgment must be expressly presented by

written answer to the motion or by other written response to the motion and are not

expressly presented by mere reference to summary judgment evidence.” Id. The Texas

Supreme Court has explained in relevant part as follows:

       [S]ummary judgments must stand or fall on their own merits, and the non-
       movant’s failure to except or respond cannot supply by default the grounds
       for summary judgment or the summary judgment proof necessary to
       establish the movant’s right—the movant’s right is not established and the
       movant must still assert grounds in the motion for summary judgment itself
       and establish its entitlement to summary judgment. While it would be
       prudent and helpful to the trial court for the non-movant always to file an
       exception, answer or response, the non-movant needs no exception,

                                            24
       answer or response to the motion to contend on appeal that the grounds
       expressly presented to the trial court by the movant’s motion are insufficient
       as a matter of law to support the summary judgment. Even if the non-
       movant fails to except or respond, if the grounds for summary judgment are
       not expressly presented in the motion for summary judgment itself, the
       motion is legally insufficient as a matter of law.

Id. at 342 (quotations & citations omitted).

B. Applicable Law

       “The common law doctrine of negligence consists of three elements: 1) a legal

duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately

resulting from the breach.” Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525

(Tex. 1990); see also Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.

2009) (“Negligence actions in Texas require a legal duty owed by one person to another,

a breach of that duty, and damages proximately caused by the breach.”) (quotations

omitted). “The threshold inquiry in a negligence case is duty.” Phillips, 801 S.W.2d at

525. “The plaintiff must establish both the existence and the violation of a duty owed to

the plaintiff by the defendant to establish liability in tort.” Id. The existence of a legal duty

is a question of law for the court to decide “from the facts surrounding the occurrence in

question.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The Texas

Supreme Court has explained in relevant part as follows:

       In determining whether the defendant was under a duty, the court will
       consider several interrelated factors, including the risk, foreseeability, and
       likelihood of injury weighed against the social utility of the actor’s conduct,
       the magnitude of the burden of guarding against the injury, and the
       consequences of placing the burden on the defendant. Of all these factors,
       foreseeability of the risk is the foremost and dominant consideration.

Phillips, 801 S.W.2d at 525 (quotations & citations omitted).




                                               25
       “Proximate cause consists of two elements: cause-in-fact and foreseeability.”

Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998). “The cause-in-fact element

of proximate cause is met when there is some evidence that the defendant’s act or

omission was a substantial factor in bringing about injury without which the harm would

not have occurred.”      Id. (quotations omitted).     “In the context of proximate cause,

foreseeability requires that a person of ordinary intelligence should have anticipated the

danger created by a negligent act or omission.” Id. “Foreseeability in the context of

causation asks whether an injury might reasonably have been contemplated because of

the defendant’s conduct.” Id. “Foreseeability does not permit simply viewing the facts in

retrospect and theorizing an extraordinary sequence of events by which the defendant’s

conduct caused the injury.” Id. “Rather, the question of foreseeability involves a practical

inquiry based on common experience applied to human conduct.”                  Id. (quotations

omitted).

C. Mizpah’s Grounds for Traditional Summary Judgment

       In its motion, Mizpah argued that “[t]he summary judgment evidence in this case

conclusively establishes that the driver of . . . [Mizpah’s] vehicle was not negligent and

did not proximately cause the accident.” Mizpah cited “[t]he police report from the scene

of the accident[, which] indicates that Refugia Barrera, and not . . . [Mizpah’s] driver . . .

caused the accident.”      Mizpah argued that “because the only summary judgment

evidence conclusively establishes that the driver for [Mizpah] . . . was not negligent and

did not proximately cause the accident, [Mizpah] . . . is entitled to summary judgment on

[plaintiffs’] . . . claims.” Mizpah also argued that it “cannot be held liable, as a matter of

law, for the allegation that [plaintiffs] . . . failed to wear a seatbelt.” According to Mizpah,



                                              26
“Section 545.41[3] of the Texas Transportation Code places the responsibility on the

passenger, and not the driver, to use his or her seatbelt.” Mizpah argued that “summary

judgment must be granted because the evidence conclusively negates negligence by

[Mizpah] . . . and that any negligence by [Mizpah] . . . proximately caused the accident or

[p]laintiffs’ alleged injuries.”

D. Discussion

       As set forth above, in their second amended petition, plaintiffs alleged that they

suffered personal injuries as the proximate result of several different negligent acts and

omissions by Mizpah. Specifically, plaintiffs alleged that Mizpah was negligent in the

following respects:       (1) failing to properly restrain plaintiffs with seat belts while

transporting plaintiffs in its vehicle while plaintiffs were under Mizpah’s care and

supervision as a provider of adult day care services, (2) operating a motor vehicle at a

speed greater than the speed at which a person of ordinary prudence would have

operated the vehicle under the same or similar circumstances, (3) failing to apply the

brakes to the motor vehicle in a timely and prudent manner “and/or” wholly failing to apply

the brakes to avoid the collision, (4) entering the intersection when it was not safe to do

so, and (5) failing to properly train and supervise its employee driver or the employee in

charge of loading its clients into its vehicle and securing them with seat belts.

       In their written response to Mizpah’s hybrid motion, plaintiffs acknowledged that

Mizpah was purporting to rely on summary judgment evidence that Barrera was at fault

for causing the collision.         Although plaintiffs did not expressly state that they were

abandoning their allegations that Mizpah’s negligence caused the collision, they did state

that the issue was “irrelevant.” Plaintiffs stated that they were relying on the allegations



                                                 27
that Mizpah was negligent in failing to provide a “suitable” seat belt for plaintiff Mario

Alberto Castillo and negligent in failing to “seat belt [plaintiff] Enriqueta Castillo, thus not

safely transporting their clients making their injuries much worse [than] if they had in fact

been seatbelted.” Based on the foregoing, we conclude that Mizpah waived any error in

the trial court’s ruling as it related to the cause of the collision. See TEX. R. CIV. P. 166a(c)

(“Issues not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.”).

       Thus, what remains are plaintiffs’ allegations that (1) Mizpah, as a provider of adult

day care services to disabled clients, such as plaintiffs, “had a duty to exercise the degree

of care that a reasonably careful person would use to avoid harm to others under

circumstances similar to those described herein” by properly restraining plaintiffs while

transporting them and by properly training and supervising the employees responsible for

operating its vehicle, loading its clients into its vehicle, and securing its clients with seat

belts; (2) Mizpah breached the duty it owed to plaintiffs; and (3) Mizpah’s negligence

proximately caused plaintiffs to suffer serious personal injuries.

       In its hybrid motion, Mizpah argued that it had no duty to restrain plaintiffs with seat

belts based on Section 545.413 of the Texas Transportation Code. See TEX. TRANS.

CODE ANN. § 545.413 (West, Westlaw through 2013 3d C.S.). However, as plaintiffs

pointed out in their written response, Section 545.413 does not purport to address

whether Mizpah had a common law duty to restrain plaintiffs. See id. Under Section

545.413, it was not a traffic offense for Mizpah to fail to restrain plaintiffs with safety belts,

but there is nothing in Section 545.413 that purports to dictate whether Mizpah had a

common law duty to restrain plaintiffs. See id. Thus, Mizpah did not negate the alleged



                                               28
existence of a legal duty based on its citation to Section 545.413, and the trial court erred

in granting summary judgment on that basis. See TEX. R. CIV. P. 166a(c).

       We hold that Mizpah did not negate the alleged existence of a legal duty, but we

do not decide whether Mizpah actually had such a duty as a matter of law. We refrain

from making that decision for three reasons. First, it is not necessary to final disposition

of this appeal. See TEX. R. APP. P. 47.1. Second, the scope of our review is limited to

the grounds for summary judgment expressly set out in the motion. See McConnell, 858

S.W.2d at 341. In its motion, Mizpah attempted to negate the existence of the legal duty

alleged by plaintiffs by relying exclusively on Section 545.413 of the Texas Transportation

Code, which as discussed above, does not purport to address the existence or non-

existence of civil duties or common law liability for negligence in the factual circumstances

presented by this case. See TEX. TRANS. CODE ANN. § 545.413. Given that this Court

may not affirm or reverse the trial court’s summary judgment on “issues [not] expressly

set out in the motion or in an answer or any other response,” TEX. R. CIV. P. 166a(c), we

must limit our holding accordingly and express no opinion with respect to any grounds for

summary judgment not expressly set out in Mizpah’s motion. Third and finally, in the

interests of judicial economy and judicial restraint, we believe the trial court should be

given the opportunity to decide this issue in the first instance on remand with the benefit

of full briefing by the parties. See Burrow v. Ace, 997 S.W.2d 229, 246 (Tex. 1999)

(“[G]iven the difficult considerations involved, we believe it to be imprudent for us to decide

the matter in the first instance without a full airing below.”).

       The second traditional ground for summary judgment Mizpah asserted in its motion

was that its alleged negligence did not proximately cause plaintiffs’ injuries because



                                               29
Barrera, the driver of the second vehicle, was at fault for causing the collision, as indicated

in the police report, which Mizpah submitted as summary judgment evidence. See TEX.

R. CIV. P. 166a(c). As set forth above, however, in their response to Mizpah’s motion,

plaintiffs essentially abandoned their allegations that Mizpah was negligent in causing the

collision. However, plaintiffs did not abandon their allegations that Mizpah was negligent

in failing to properly restrain plaintiffs while transporting them and failing to properly train

and supervise the employees responsible for operating its vehicle, loading its clients into

its vehicle, and securing its clients with seat belts.

       Mizpah did not attempt to affirmatively negate the element of proximate cause with

respect to these allegations because it took the position that it owed plaintiffs no duty to

restrain them with seat belts. In its motion, Mizpah did not address why there would be

no proximate cause if the court were to decide that Mizpah had not negated the alleged

existence of the legal duties set forth above. Rather, in the motion, Mizpah argued

generally that the negligence of the other driver, not Mizpah, caused the collision and

plaintiffs’ injuries.   The motion did not address plaintiffs’ allegation that Mizpah’s

negligence in failing to restrain plaintiffs and failing to properly train and supervise its

employees proximately caused plaintiffs to suffer serious personal injuries. Therefore,

Mizpah failed to negate the element of proximate cause, and the trial court erred in

granting summary judgment on this basis. See id.

       Finally, we note that Mizpah also moved for summary judgment on the basis that

there was no evidence that plaintiffs were not restrained by seat belts when the collision

occurred. See TEX. R. CIV. P. 166a(i). Mizpah asserted this ground in both the no

evidence and traditional sections of its hybrid motion. However, in making this assertion



                                              30
in connection with its traditional grounds for summary judgment, Mizpah did not

affirmatively state that plaintiffs were wearing their seat belts when the collision occurred

and did not point out any evidence in the record to affirmatively establish that plaintiffs

were wearing their seat belts when the collision occurred. See TEX. R. CIV. P. 166a(c).

Mizpah argued only that there was no evidence that plaintiffs were not wearing their seat

belts. See TEX. R. CIV. P. 166a(i).

       Again, a summary judgment must “stand or fall on the grounds expressly

presented in the motion.” McConnell, 858 S.W.2d at 341. “In determining whether

grounds are expressly presented, reliance may not be placed on briefs or summary

judgment evidence.” Id. Therefore, we may not search the record for evidence that

plaintiffs were wearing their seat belts because, in its motion, Mizpah failed to assert that

plaintiffs were wearing their seat belts and failed to identify any summary judgment

evidence that would support such an assertion. See id.

       Mizpah did not identify or discuss any evidence regarding whether plaintiffs were

secured by safety belts. Mizpah merely asserted that plaintiffs could not identify what

happened in the collision because they are both deceased. Mizpah also asserted that

there was no evidence that plaintiffs were not restrained. To the extent that these

assertions raised otherwise valid grounds for summary judgment, the trial court could not

have properly granted the motion on these grounds because they were no evidence

grounds and we have already concluded that there was not adequate time for discovery

before Mizpah moved for summary judgment on no evidence grounds. See TEX. R. CIV.

P. 166a(i). Therefore, we cannot consider the no evidence grounds raised in Mizpah’s




                                             31
hybrid motion, including the ground that there was no evidence that plaintiffs were not

wearing their seat belts when the collision occurred. See id.

      We sustain plaintiffs’ second and third issues.

                                     III. CONCLUSION

      Without reaching plaintiffs’ fourth or fifth issues, we reverse the trial court’s

summary judgment and remand the case for further proceedings consistent with this

opinion. See TEX. R. APP. P. 47.1.




                                                        NORA L. LONGORIA
                                                        Justice

Dissenting Memorandum Opinion by Justice Perkes.

Delivered and filed the
22nd day of May, 2014.




                                           32
