Affirmed and Memorandum Opinion filed February 4, 2020.




                                           In The

                       Fourteenth Court of Appeals

                                  NO. 14-18-00533-CV

                            SUSAN FLANDER, Appellant

                                              V.
   STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee

               On Appeal from the County Civil Court at Law No. 4
                             Harris County, Texas
                      Trial Court Cause No. 1105515-101

                    MEMORANDUM OPINION

       Appellant Susan Flander appeals a summary judgment granted to State Farm
Mutual Automobile Insurance Co. on res judicata grounds.1 After a review of the
record, we conclude that State Farm established each element of its res judicata
affirmative defense. Flander failed to respond to State Farm’s summary-judgment


       1
        Asserting it was incorrectly sued as “State Farm Insurance,” appellee notes its correct
name as State Farm Mutual Automobile Insurance Company. We refer to appellee as “State
Farm.”
motion. Accordingly, State Farm is entitled to judgment as a matter of law, and we
affirm.

                                     Background

      Flander was involved in an automobile accident with State Farm’s insured,
Monica Moore. Flander entered the access road to Highway 290 from a side street,
and her vehicle collided with Moore’s. Because Moore had the right-of-way, a
police officer issued a citation to Flander.        However, Flander’s ticket was
dismissed because the officer failed to appear for Flander’s trial.

      State Farm paid Moore’s property damage and then, as subrogee of Moore,
sued Flander in cause number 365998 in the Harris County Justice Court, Precinct
5, Place 2 (the “subrogation case”). Flander filed an answer and claimed that the
dismissal of her ticket meant that she was not liable for any damages. She filed an
amended answer a few days later in which she claimed that State Farm engaged in
fraud. Later, Flander failed to appear for trial, despite receiving notice of the trial
setting. The trial court signed a final default judgment in favor of State Farm and
against Flander in the subrogation case. The trial court determined that State Farm
had a valid assignment from Moore, that the accident was caused by Flander’s
negligence, and that State Farm had incurred damages of $7,424.63.

      Flander received notice of the subrogation case judgment within ten days of
its signing, but she filed neither a motion for new trial nor a notice of appeal.

      More than two years after the subrogation case judgment became final,
Flander, representing herself, filed her original petition in the instant case. In her
live pleading, Flander alleged that, because her ticket was dismissed, she could not
have been liable in the subrogation case; that State Farm committed fraud by
attempting to recover its subrogation damages from her; and that Moore was


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responsible for the accident.2 State Farm answered and asserted the affirmative
defenses of res judicata and collateral estoppel.

       State Farm timely served requests for admission to Flander seeking to
establish undisputed facts and certain documents, but Flander failed to respond.
State Farm moved for summary judgment on res judicata grounds, attaching
Flander’s deemed admissions as support. Flander moved to strike State Farm’s
summary-judgment motion, but she did not file a response. She also did not seek
to withdraw her deemed admissions. The trial court granted State Farm’s motion
without stating the grounds and dismissed Flander’s claims with prejudice.3

       Flander appeals.

                                    Standard of Review

       We review a trial court’s ruling on a motion for summary judgment de novo.
Tarr v. Timberwood Park Owners Assoc., Inc., 556 S.W.3d 274, 278 (Tex. 2018).
A summary-judgment movant must prove conclusively that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Tex. R.

       2
          We cannot determine precisely Flander’s claims against State Farm from her pro se
petition, which is entitled “Complaint for Injunction.” However, State Farm requested, inter
alia, that Flander admit the following facts:
       In Cause Number 1105515, you argued that since your ticket was dismissed, you
       could not be liable in this case.
       In Cause Number 1105515, you argued that it was fraud for State Farm to attempt
       to recover from you.
       In Cause Number 1105515, you argued that Monica Moore was responsible for
       the action.
Flander did not respond to these requests for admission.
       3
         Flander sued several other defendants in this case. After State Farm obtained summary
judgment, it moved to sever. The trial court granted the motion to sever, making State Farm’s
summary judgment final and appealable. E.g., Diversified Fin. Sys., Inc. v. Hill, Heard, O’Neal,
Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (“As a rule, the severance of an
interlocutory judgment into a separate cause makes it final.”).

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Civ. P. 166a(c). As is relevant here, to be entitled to summary judgment based on
an affirmative defense, a defendant must establish all elements of the affirmative
defense as a matter of law. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
Once the defendant produces evidence sufficient to establish the right to summary
judgment, the burden shifts to the plaintiff to come forward with competent
controverting evidence that raises a fact issue as to one element of the defendant’s
affirmative defense. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437
S.W.3d 507, 511 (Tex. 2014).       If the movant does not satisfy its initial burden,
however, the burden does not shift, and the non-movant need not respond or
present any evidence. Id. at 511-12; see also McConnell v. Southside Indep. Sch.
Dist., 858 S.W.2d 337, 343 (Tex. 1993) (“the non-movant’s failure to answer or
respond cannot supply by default the summary-judgment proof necessary to
establish the movant’s right” to judgment).

                                      Analysis

      Flander’s pro se briefing is difficult to distill. However, she appears to
assert that the trial court “reached beyond its jurisdiction” by allowing State Farm
to amend its original answer, resetting a status conference, and granting State
Farm’s motion for summary judgment. She presents no argument in support of her
first two issues, so we address only her third issue here. See Tex. R. App. P.
38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”).

      Flander failed to respond to State Farm’s motion for summary judgment in
the trial court, instead moving to strike it. We are mindful, however, that we look
to a pleading’s substance, rather than its style, to determine the nature of the
pleading. See Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex.
2011); Thibodeau v. Lyles, 558 S.W.3d 166, 168 (Tex. App.—Houston [14th Dist.]

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2018, no pet.). In her motion to strike, Flander asserted that “the doctrines of res
judicata and collateral estoppel do[] not bar [Flander] under Tex. Ins. Code § 542;
thus affords [Flander] a cause of action under unfair claim settlement practices.”
However, other than this bare assertion that she may make a claim under any of the
many provisions of chapter 542,4 despite the doctrines of res judicata and collateral
estoppel, and affording her motion the most liberal construction, she does not
respond to the substance of State Farm’s summary-judgment motion. Thus, we do
not consider her motion to strike a response to State Farm’s summary-judgment
motion. Because she failed to respond to State Farm’s motion, we need only
consider whether State Farm met its initial summary-judgment burden.               We
conclude that State Farm established that the doctrine of res judicata bars Flander’s
suit.

A.      Res Judicata

        Res judicata is an affirmative defense that bars the re-litigation of certain
claims or cases between parties that have already been decided. See Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Eagle Oil & Gas Co. v. Shale
Expl., LLC, 549 S.W.3d 256, 266 (Tex. App.—Houston [1st Dist.] 2018, pet.
dism’d). To successfully assert the affirmative defense of res judicata, a party
must prove: (1) a final prior judgment on the merits by a court of competent
jurisdiction; (2) the identity of the parties, or those in privity with them; and (3) a
second action based on the same claims as were or could have been raised in the
first action. Joachim, 315 S.W.3d at 862; Welch v. Hrabar, 110 S.W.3d 601, 606
(Tex. App.—Houston [14th Dist.] 2003, pet. denied). The burden is on the party
asserting the affirmative defense to plead and prove the defense’s elements.
Welch, 110 S.W.3d at 606.                When applicable, res judicata bars a second,

        4
            See Tex. Ins. Code §§ 542.001-.302.

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subsequent suit. See Welch, 119 S.W.3d at 606; see also Engelman Irrigation Dist.
v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017) (“Res judicata bars the
relitigation of claims that have been finally adjudicated or that could have been
litigated in the prior action.”); Tex. Water Rights Comm’n v. Crow Iron Works, 582
S.W.2d 768, 771-72 (Tex. 1979) (holding that party may not pursue claim
determined by final judgment of court of competent jurisdiction in prior suit as
ground of recovery in later suit against same parties). “When, as here, the material
facts are not disputed, the applicability of res judicata presents a question of law,
which we review de novo.” Eagle Oil & Gas Co., 549 S.W.3d at 267.

B.    Application

      Flander failed to respond to State Farm’s requests for admission. Requests
for admission are “written requests that the other party admit the truth of any
matter within the scope of discovery, including statements of opinion or of fact or
of the application of law to fact.” Tex. R. Civ. P. 198.1. “If a response is not
timely served, the request is considered admitted without the necessity of a court
order.” Tex. R. Civ. P. 198.2; see also Marino v. King, 355 S.W.3d 629, 633 (Tex.
2011) (per curiam). An admitted matter is “conclusively established as to the party
making the admission unless the court permits the party to withdraw or amend the
admission.” Tex. R. Civ. P. 198.3. Here, Flander did not seek to withdraw or
amend her admissions in the trial court. See, e.g., Stelly v. Papania, 927 S.W.2d
620, 622 (Tex. 1996) (per curiam) (explaining that trial court has broad discretion
to permit or deny the withdrawal of deemed admissions).

      Because she failed to respond to State Farm’s requests for admission,
Flander admitted that (1) she sought a judicial determination that she was not liable
in the subrogation case, (2) State Farm had committed fraud by attempting to
recover its subrogation damages from her, and (3) Moore was responsible for the

                                         6
automobile accident that was the basis for the subrogation case. Further, State
Farm included Flander’s answer and amended answer in the subrogation case,
which confirmed that Flander raised these issues in the subrogation case.
Additionally, State Farm was explicitly identified as Moore’s subrogee in the
subrogation case. State Farm also attached the judgment against Flander in the
subrogation case. In other words, State Farm presented evidence on each element
of its res judicata affirmative defense. See Joachim, 315 S.W.3d at 862; Welch,
110 S.W.3d at 606.

      Thus, the burden shifted to Flander to come forward with evidence raising a
fact issue as to State Farm’s affirmative defense. E.g., Amedisys, Inc, 437 S.W.3d
at 511. As Flander did not respond to State Farm’s motion, the trial court did not
err in granting State Farm’s summary-judgment motion. E.g., Consol. Healthcare
Servs., LLC v. Mainland Shopping Ctr., Ltd., No. 14-18-00189-CV, —S.W.3d —,
2019 WL 6974966, at *6 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019, no pet.
h.); cf. Lyons v. Lexington Woods Trails Cmty. Ass’n, Inc., No. 14-17-00423-CV,
2018 WL 1542489, at *3 (Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet.)
(mem. op.).

      We overrule Flander’s issue challenging the summary judgment in State
Farm’s favor.

                                    Conclusion

      State Farm established its res judicata defense as a matter of law; thus, it was
incumbent on Flander to come forward with evidence raising a fact issue on State
Farm’s affirmative defense to avoid summary judgment. Because she did not do




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so, the trial court properly granted summary judgment in favor of State Farm. We
affirm the trial court’s judgment.




                                       /s/       Kevin Jewell
                                                 Justice


Panel consists of Justices Wise, Jewell, and Poissant.




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