                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-15-00098-CV


ST. JOHN BACKHOE SERVICE                                       APPELLANT

                                        V.

DONALD VIETH AND KEN ALAN                                      APPELLEES
SCOTT


                                     ----------

             FROM THE 97TH DISTRICT COURT OF CLAY COUNTY
                    TRIAL COURT NO. 2013-0118C-CV

                                     ----------

                          MEMORANDUM OPINION1

                                     ----------

     In three issues, Appellant St. John Backhoe Service (SJBS) appeals from

the trial court’s orders granting the motions for summary judgment filed by

appellees Donald Vieth and Ken Alan Scott. We reverse and remand.




     1
         See Tex. R. App. P. 47.4.
                                 I. BACKGROUND

      Scott hired Vieth to cut hay growing on property owned by Nicholas

Oleson. While Vieth was cutting hay on the property on September 13, 2011, the

field caught fire. The fire spread to property where a piece of farm equipment

owned by SJBS was located and destroyed the equipment.

      SJBS filed suit against Vieth, Scott, and Oleson, alleging that their

negligence caused the fire and resulted in the total loss of its piece of farm

equipment. SJBS mailed its original petition against Vieth, Scott, and Oleson to

the trial court clerk for filing on September 11, 2013. On September 16, 2013,

the clerk filed the petition and issued citations on Vieth and Scott.2

      SJBS unsuccessfully attempted personal service on Vieth and Scott three

times in October 2013. In December 2013, SJBS filed a motion for substituted

service on Vieth, which the trial court granted on December 30, 2013. See Tex.

R. Civ. P. 106(b). Vieth was served by substituted service on January 18, 2014.

SJBS filed a motion for substituted service on Scott in January 2014. Scott was

served by substituted service on February 8, 2014.

      In their answers, Vieth and Scott both asserted the affirmative defense of

limitations. They filed separate motions for traditional summary judgment on

their limitations defenses, contending that they were entitled to summary

judgment because SJBS filed its lawsuit after limitations expired and,


      2
          SJBS nonsuited its case against Oleson in November 2014.


                                          2
alternatively, because they were not served until several months after limitations

expired. Scott further moved for traditional summary judgment on the following

grounds: (1) he was not liable in his individual capacity, (2) he was not liable for

Vieth’s negligence because they were not in a partnership or joint venture, (3) he

was not liable for Vieth’s negligence because Vieth was an independent

contractor over whose work Scott had no control, and (4) Scott did not take any

action that may have caused the fire.         Scott also moved for no-evidence

summary judgment, alleging that there was no evidence that (1) a partnership or

joint venture existed between Scott and Vieth, (2) Scott exercised any control

over the details of Vieth’s cutting and baling work, (3) Scott was responsible for

Vieth’s actions in connection with the fire, (4) Scott should have foreseen that

Vieth’s cutting and baling work would have caused a fire, (5) SJBS filed suit

within the two-year limitations period, (6) SJBS exercised due diligence at all

times in effecting service on Scott, and (7) Scott performed any actions in his

individual capacity.

      The trial court granted Vieth’s and Scott’s motions. SJBS has appealed.

                          II. STANDARD OF REVIEW

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp


                                         3
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to

summary judgment on an affirmative defense if the defendant conclusively

proves all the elements of the affirmative defense.         Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. denied, 562 U.S. 1180

(2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant-

movant must present summary judgment evidence that conclusively establishes

each element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453,

455 (Tex. 2008).

                                 III. LIMITATIONS

      In its first and second issues, SJBS argues that the trial court erred by

granting Vieth and Scott summary judgment on limitations grounds because its

original petition was timely filed and because it used reasonable diligence in

serving Vieth and Scott.

      The statute of limitations on a negligence claim is two years. See Tex. Civ.

Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2015); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999). Therefore,

limitations on SJBS’s negligence claims against Vieth and Scott expired on

September 13, 2013.        To bring suit within the limitations period, SJBS was

required to file suit within the limitations period and to use diligence in having

Vieth and Scott served with process. See Gant v. DeLeon, 786 S.W.2d 259, 260


                                         4
(Tex. 1990); see also Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007)

(explaining that “a timely filed suit will not interrupt the running of limitations

unless the plaintiff exercises due diligence in the issuance and service of

citation”). If SJBS was diligent in serving Vieth and Scott after the expiration of

the statute of limitations, then the date of service related back to the date SJBS’s

original petition was filed. See Gant, 786 S.W.2d at 260; see also Proulx, 235

S.W.3d at 215.

A. Did SJBS file suit within the limitations period?

      Both Vieth and Scott moved for summary judgment on the ground that

SJBS did not file its petition before limitations expired. In the order granting

Scott’s motion, the trial court expressly found that “there is no genuine issue of

material fact as to Defendant’s affirmative defense of Statute of Limitations and

Defendant is entitled to summary judgment thereon” and that “Defendant is

entitled to summary judgment as a matter of law because the litigation was filed

more than two years after the cause of action of negligence in this case accrued.”

However, the trial court struck identical findings in the order granting Vieth’s

motion.

      Vieth concedes that the trial court granted him summary judgment “solely

on the remaining issue of diligent service.”     But because the order granting

Scott’s motion includes an express finding that Scott was entitled to summary




                                         5
judgment for the reason that SJBS’s petition was filed outside the statute of

limitations, we address whether summary judgment was proper on this ground.

      Texas Rule of Civil Procedure 5 provides in pertinent part as follows:

              If any document is sent to the proper clerk by first-class United
      States mail in an envelope or wrapper properly addressed and
      stamped and is deposited in the mail on or before the last day for
      filing same, the same, if received by the clerk not more than ten days
      tardily, shall be filed by the clerk and be deemed filed in time. A
      legible postmark affixed by the United States Postal Service shall be
      prima facie evidence of the date of mailing.

Tex. R. Civ. P. 5. SJBS attached to its summary judgment response an affidavit

executed by Laura Martinez, a custodian of records for the law firm representing

SJBS.       Attached to Martinez’s affidavit were (1) a copy of a cover letter

addressed to the trial court clerk and dated September 11, 2013, transmitting the

original petition and filing fees and requesting the issuance of citation and (2) a

copy of the envelope in which the cover letter and original petition were mailed.

The envelope was postmarked by the United States Postal Service on

September 11, 2013.         Martinez averred in her affidavit that she was “the

individual who signed the transmittal letter and sent it along with the above-

referenced documents to the Clay County District Clerk on September 11, 2013”

and that “[t]he petition was stamped five days later by the District Clerk’s office.”3

      Viewing the evidence in a light most favorable to SJBS, Scott did not

establish as a matter of law that SJBS failed to file its petition before limitations


      3
          SJBS’s original petition was file-marked September 16, 2013.


                                          6
expired on September 13, 2013, because, under rule 5, SJBS’s petition was

deemed filed on September 11, 2013. Accordingly, the trial court erred to the

extent that it granted summary judgment for Scott on this ground.

B. Did SJBS use reasonable diligence in serving Vieth and Scott?

      Vieth and Scott also moved for summary judgment on the ground that

SJBS did not use reasonable diligence in serving them.           They argued that

because there were multiple periods of unexplained lapses between service

efforts from when SJBS’s original petition was filed on September 11, 2013, until

they were served—Vieth on January 18, 2014, and Scott on February 8, 2014—

SJBS failed to exercise diligence in serving them as a matter of law.

      When a defendant has affirmatively pled the defense of limitations and

establishes that service occurred after the limitations period expired, the burden

shifts to the plaintiff to explain the delay. Ashley v. Hawkins, 293 S.W.3d 175,

179 (Tex. 2009); Proulx, 235 S.W.3d at 216. The plaintiff must then present

evidence to raise a fact issue as to due diligence in service of process. Proulx,

235 S.W.3d at 216.      If the plaintiff’s evidence raises a material fact issue

regarding the diligence of service, the burden then shifts back to the defendant to

conclusively show why, as a matter of law, the explanation is insufficient. Id.

      To explain a delay in service, “it is the plaintiff’s burden to present

evidence regarding the efforts that were made to serve the defendant, and to

explain every lapse in effort or period of delay.” Id. (citing Gant, 786 S.W.2d at

260); see also Zimmerman v. Massoni, 32 S.W.3d 254, 256 (Tex. App.—Austin


                                         7
2000, pet. denied) (stating that a plaintiff’s attorney must evaluate continuously

the state of efforts to secure service). “Generally, the question of the plaintiff’s

diligence in effecting service is one of fact, and is determined by examining the

time it took to secure citation, service, or both, and the type of effort or lack of

effort the plaintiff expended in procuring service.” Proulx, 235 S.W.3d at 216.

The “relevant inquiry is whether the plaintiff acted as an ordinarily prudent person

would have acted under the same or similar circumstances and was diligent up

until the time the defendant was served.” Id. However, if “one or more lapses

between service efforts are unexplained or patently unreasonable,” then the

record demonstrates lack of diligence as a matter of law. Id. “[W]hile the time

period is important, it is not necessarily determinative of the question of diligence.

Rather, we must consider the overall effort expended over the gap in service,

and whether the search ceased to be reasonable, especially when other methods

of service were available.” Ashley, 293 S.W.3d at 181 (citing Proulx, 235 S.W.3d

at 217; Gant, 786 S.W.2d at 260).

        As explained above, limitations on SJBS’s claim expired on September 13,

2013.     Vieth and Scott met their initial summary judgment burdens by

establishing that they were served with citation after limitations expired. See

Tex. R. Civ. P. 166a(c). The burden then shifted to SJBS to explain its delay in

serving Vieth and Scott and to present evidence to raise a fact issue as to its due

diligence in effectuating service. See Proulx, 235 S.W.3d at 215–16.




                                          8
      The district clerk issued citations directed to Vieth and Scott on September

16, 2013, five days after SJBS filed its original petition by mail. Marcia McBride,

a private process server, attempted to personally serve Vieth and Scott on

October 8, 24, and 28, 2013. With respect to SJBS’s attempted service on Vieth,

McBride executed an affidavit on November 12, 2013, in which she stated that

she attempted to serve Vieth at an address in Henrietta, Texas, believed to be

his residence or business (the Henrietta address).        On October 8, McBride

knocked on the door, and Vieth’s wife answered. She stated that he was out of

town. McBride observed two cars in the driveway. McBride knocked on the door

again on October 24, but no one answered.            On October 28, Vieth’s wife

answered the door and stated that he was not home.

      On December 5, 2013, SJBS’s counsel’s office mailed to the trial court

clerk a motion for substituted service on Vieth supported by McBride’s affidavit.

The clerk filed the motion on December 30, 2013,4 and the trial court signed an

order granting the motion that day. The trial court found that “attempted service

has not been successful, despite numerous and diligent attempts to serve

Defendant” and ordered that Vieth could be served by leaving the citation and

petition with any person over the age of sixteen at the Henrietta address or by

attaching the citation and petition to the door at the Henrietta address.        On


      4
        There is no explanation in the record as to why twenty-five days elapsed
between the mailing of the motion for substituted service and its filing by the trial
court clerk.


                                         9
January 18, 2014, McBride served Vieth by substituted service at the Henrietta

address by leaving the citation and the original petition with Vieth’s daughter.

      With respect to SJBS’s attempted service on Scott, McBride executed an

affidavit on November 12, 2013, stating that on October 8, 24, and 28, 2013, she

attempted personal service on Scott at an address in Bellevue, Texas, that was

believed to be Scott’s residence or business (the Bellevue address).               With

respect to each attempt, she noted, “Property Posted—PRIVATE PROPERTY.

Unable to enter w/o trespass violation.”

      According to SJBS’s summary judgment evidence,5 SJBS’s counsel’s

office contacted Robert Allen, another process sever, by email on January 2,

2014, and January 10, 2014, asking him to provide proof that Scott resided at the

Bellevue address. In an affidavit executed on January 11, 2014, Allen stated that

he personally searched the online tax database for Clay County and that the

database listed Scott as the owner of the real property located at the Bellevue

address. On January 15, 2014, SJBS’s counsel’s office mailed to the trial court

clerk a motion for substituted service on Scott with McBride’s and Allen’s

affidavits attached as support.    The trial court signed an order granting the

      5
        Exhibits E and F to SJBS’s response to Scott’s motion for summary
judgment each contained a timeline of events related to SJBS’s attempts to serve
Scott. Exhibit E was a business records affidavit from Martinez with “a page
containing copies of entries made in [the firm’s] electronic database for [the firm’s
file related to this case].” Exhibit F was a document entitled “Documented
Events: Service on Defendant Scott,” which was list of dates and events related
to service on Scott. The trial court overruled Scott’s objections to Exhibits E and
F, and he does not complain about these rulings on appeal.


                                           10
motion on January 21, 2014. The trial court found that “attempted service has

not been successful, despite numerous and diligent attempts to serve Defendant”

and ordered that Scott could be served by leaving the citation and petition with

any person over the age of sixteen at the Bellevue address or by attaching the

citation and petition to the door at the Bellevue address.

      SJBS received the order on January 23, 2014, forwarded it to Allen that

day, and asked Allen to have Scott served “using” the order. SJBS contacted

Allen again on February 6, 2014, asking whether Scott had been served yet. On

February 8, 2014, McBride served Scott by substituted service at the Bellevue

property by posting the citation and the original petition on the gate.

      Both Vieth and Scott rely on Proulx to argue that SJBS did not use due

diligence in serving them because the lapses between service efforts were

unexplained and were patently unreasonable. See 235 S.W.3d at 216 (“[T]he

plaintiff’s explanation of its service efforts may demonstrate a lack of due

diligence as a matter of law, as when one or more lapses between service efforts

are unexplained or patently unreasonable.”)         In Proulx, the supreme court

considered whether an almost nine-month delay between the time suit was filed

and the defendant was served by substituted service demonstrated a lack of

diligence as a matter of law. Id. at 215–16. Proulx filed a personal injury suit

against Wells on May 2, 2003, and the process server received the citation on

May 20, 2003. Id. at 214. Limitations expired on May 21, 2003, and from then

until July 22, 2003, a process server attempted to serve Wells eleven times at


                                         11
one address.    Id.   On July 31, 2003, the process server informed Proulx’s

attorney that he did not believe that Wells lived at that address. Id. An in-house

investigator informed the process server that he located three alternative

addresses for Wells. Id. at 214–15. Between August 5, 2003 and September 17,

2003, the process server made twelve attempts to serve Wells at those

addresses. Id. at 215. A second process server made seven service attempts at

two different addresses between October 17, 2003 and December 5, 2003, and

made twenty phone calls to Wells’s brother (who resided at the address listed on

Wells’s driver’s license) between December 5, 2003, and December 10, 2003.

Id. On December 5, 2003, a second private investigator Proulx hired to locate

Wells concluded that he was moving from relative to relative to evade service

and suggested substituted service.    Id.   Proulx filed a motion for substituted

service on January 15, 2004, and service was effected by substituted service on

Wells’s brother on January 26, 2004, a little over eight months after limitations

expired. Id.

      Despite these delays, the supreme court concluded

      that some periods of time elapsed between service efforts does not
      conclusively demonstrate that Proulx was not exercising diligence in
      his efforts to locate Wells. According to the summary-judgment
      evidence, Proulx utilized two process servers and two investigators
      in attempting to locate an address at which service could be
      effected. Over the course of the nine months that elapsed before
      substituted service was obtained, thirty service attempts were made
      at five different addresses. The difficulties that Proulx encountered
      in effecting service were attributed by a private investigator to the
      fact that Wells was “moving from relative to relative and doing his
      best to avoid service from the courts and creditors.”


                                       12
Id. at 217. The court went on to conclude that “[i]n light of the evidence that was

presented regarding Proulx’s continuous investigation and repeated service

attempts, coupled with evidence that Wells was deliberately avoiding service, we

conclude that Wells failed to conclusively establish lack of diligence.” Id. Thus,

the trial court erred by granting summary judgment for Wells. See id. at 215.

      Vieth also relies on Webster v. Thomas, a case in which the court of

appeals affirmed summary judgment on the grounds that the plaintiff failed to

show due diligence as a matter of law. 5 S.W.3d 287, 289–90 (Tex. App.—

Houston [14th Dist.] 1999, no pet.). In Webster, five months elapsed between

the filing of the petition and service on the defendant. Id. at 290. Webster filed

suit in county court on May 8, 1997, the day limitations expired. Id. at 288.

Three months later, on August 8, citation was issued. Id. On August 11, 1997,

Webster’s attorney sent the citation to the wrong precinct for service, and the

constable returned the citation unserved on August 29, 1997. Id. Two weeks

later, on September 15, 1997, the attorney mailed the citation to the correct

precinct. Id. The constable made eighteen attempts to serve Thomas. Id. On

October 8, 1997, the constable suggested filing a motion for substituted service,

and the attorney began preparing the motion. Id. Before the motion could be

filed, the constable served Thomas with citation on October 13. Id.

      Webster’s attorney stated in an affidavit supporting Webster’s summary

judgment response that he called the district clerk’s office “several times

[inquiring] when the citation would be issued.” Id. at 290. The appellate court


                                        13
noted that the affidavit reflected that the attorney had called the wrong clerk’s

office and did not reflect what the attorney said to the clerk, that there was an

additional three week lapse of time because the attorney sent the citation to the

wrong precinct, and that there was an unexplained two-week delay in sending

the citation to the correct precinct. Id. at 290–91. The court concluded that these

actions, which were taken over a period of four months and ten days “were not

designed to procure the issuance of citation and service” and were not prudent.

Id. at 291. Thus, the plaintiff did not exercise due diligence. Id.

      Here, SJBS served Vieth approximately four months after it filed suit and

served Scott approximately a month after it served Vieth. Although there were

periods of time that elapsed between the issuance of citation and the first service

attempts, between the three service attempts, between the last service attempt

and the filing of the motions for substituted service, and between the granting of

the motions for substituted service and substituted service, these lapses do not

conclusively demonstrate that SJBS was not exercising due diligence in its

efforts to serve Vieth and Scott. Four attempts were made to serve both Vieth

and Scott, SJBS prepared and filed motions for substituted service, and SJBS

served Vieth and Scott by substituted service. Most of these periods were made

up of various short delays ranging from a few days to just over three weeks. Like

the various two- and three-week delays in Proulx, the delays in this case do not

conclusively establish that SJBS did not use due diligence in its efforts to serve

Vieth and Scott.    See Proulx, 235 S.W.3d at 216–17; see also Fontenot v.


                                         14
Gibson, No. 01-12-00747-CV, 2013 WL 2146685, at *2 (Tex. App.—Houston [1st

Dist.] May 16, 2013, no pet.) (mem. op.) (holding a two-week delay between the

request for the first citation and the court’s issuing the citation, followed by a two-

week delay in delivering it to a process server; a three-week delay between the

court clerk’s issuing a second citation and Fontenot’s sending the citation to a

process server; and a three-week delay between the process server’s receipt of

the citation and the process server’s first attempt at service did not demonstrate

a lack of diligence).

        The longest period of delay was the approximately two and half months

between McBride’s third service attempt on Scott, which occurred on October 28,

2013, and the filing of the motion for substituted service on Scott on January 15,

2014.    During that time, McBride prepared an affidavit detailing her service

attempts on Scott at the Bellevue address, and SJBS asked Allen to search

appraisal district records to confirm that Scott lived at the Bellevue address and

to execute an affidavit regarding his search. These efforts raise a fact issue

regarding diligence. See Fontenot, 2013 WL 2146685, at *3 (concluding that

evidence that plaintiff’s attorney had requested that the process server

investigate defendant’s whereabouts, requested a forwarding address from the

postal service, and searched various websites for defendant’s address over a

two-month period raised a fact issue); Tate v. Beal, 119 S.W.3d 378, 381 (Tex.

App.—Fort Worth 2003, pet. denied) (holding facts raised issue on diligence

when first citation was returned unserved and plaintiff searched for two and one-


                                          15
half months before discovering defendant’s address and requesting service

again).

       The delays between SJBS’s efforts are not so “unexplained or patently

unreasonable” that they demonstrate a lack of diligence as a matter of law. See

Proulx, 235 S.W.3d at 216–17. We recognize that there was no evidence that

either Vieth or Scott was attempting to evade service like the defendant in Proulx,

but we conclude that this case more closely resembles Proulx than Webster. In

Webster, the court held that there was no due diligence as a matter of law when

the evidence showed that Webster’s actions over a four month period were not

designed to procure the issuance and service of citation. See Webster, 5 S.W.3d

at 291. In this case, citation was issued immediately, not three months after suit

was filed, and a process server was working to serve Vieth and Scott. Thus,

viewing the summary judgment evidence in the light most favorable to SJBS, we

conclude that SJBS’s actions were designed to procure issuance and service of

citation.

       Finally, we note that the trial court expressly found in its orders granting

the motions for substituted service that SJBS made “numerous and diligent

attempts to serve” Vieth and Scott. This, combined with SJBS’s evidence of its

attempts to secure service, is sufficient to raise a fact issue regarding its due

diligence. See Elam v. Armstrong, No. 03-07-00565-CV, 2008 WL 3539968, at

*3–4 (Tex. App.—Austin Aug. 14, 2008, no pet.) (mem. op.) (holding that internet

searches for defendant’s address over approximately eight months between


                                        16
second service attempt and filing of motion for service by publication were

sufficient to raise a question of fact regarding diligence, particularly in light of the

trial court’s express finding in order granting motion for service by publication that

plaintiff had exercised due diligence in attempting to serve defendant). Viewing

the summary judgment evidence in the light most favorable to SJBS, we

conclude that the evidence raised a genuine issue of material fact as to SJBS’s

diligence in effecting service on Vieth and Scott and that Vieth and Scott have

not shown why, as a matter of law, SJBS’s explanation is insufficient.             See

Proulx, 235 S.W.3d at 215.

      Because Vieth and Scott each failed to conclusively establish his

limitations affirmative defense as a matter of law,6 we sustain SJBS’s first and

second issues.

                          IV. SCOTT’S ADDITIONAL
                       SUMMARY JUDGMENT GROUNDS

      The trial court granted Scott summary judgment on his limitations

affirmative defense, but as outlined above, Scott moved for summary judgment

on several additional traditional and no-evidence grounds. The trial court did not


      6
         Scott also moved for no-evidence summary judgment on limitations. He
was not entitled to a no-evidence summary judgment on limitations because
limitations is an affirmative defense on which he would have the burden of proof
at trial. See Fieldtech Avionics & Instruments, Inc. v. Component Control.Com,
Inc., 262 S.W.3d 813, 830 n.8 (Tex. App.—Fort Worth 2008, no pet.); see also
Tex. R. Civ. P. 166a(i) (providing that a party may move for no-evidence
summary judgment on a claim or defense on which an adverse party would have
the burden of proof at trial). Thus, the trial court erred to the extent that it granted
Scott summary judgment on limitations on no-evidence grounds.

                                          17
rule on these additional grounds. Scott has raised a cross-point arguing that

summary judgment was proper because the summary judgment evidence

established that Scott was not negligent as matter of law and because SJBS

failed to produce more than a scintilla of probative evidence that raised a genuine

issue of material fact as to Scott’s negligence.

         When reviewing a summary judgment granted on specific grounds, the

summary judgment can only be affirmed if the ground on which the trial court

granted relief is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623,

625–26 (Tex. 1996). But if a party preserves the other grounds presented that

were not ruled on by the trial court, a court of appeals may consider, in the

interest of judicial economy, those other grounds that the trial court did not rule

on.   Id. at 626.   To preserve the grounds, the party must raise them in the

summary judgment proceeding and present them in an issue or cross-point on

appeal. Id. at 625–26.

         Although we may consider Scott’s cross-point in the interest of judicial

economy, we are not required to do so. See id. at 624; City of Brownsville ex rel.

Pub. Utils. Bd. v. AEP Tex. Cent. Co., 348 S.W.3d 348, 358 (Tex. App.—Dallas

2011, pet. denied). We conclude that our consideration of Scott’s cross-point

would not further the interest of judicial economy in this matter. See City of

Brownsville, 348 S.W.3d at 358–59. Thus, we decline to consider Scott’s cross-

point.




                                         18
                               V. CONCLUSION

      Having sustained SJBS’s first and second issues, we reverse the orders

granting summary judgment for Vieth and Scott and remand the case for further

proceedings consistent with this opinion. See Tex. R. App. P. 43.2(d).


                                                 /s/ Anne Gardner
                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, MEIER, and SUDDERTH, JJ.

DELIVERED: August 4, 2016




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