Nancy Gomez and Shalona Murray v. Mark Richard and Millwood Trucking, Inc.

In the
               Court of Appeals
 Sixth Appellate District of Texas at Texarkana


                    No. 06-25-00041-CV



   NANCY GOMEZ AND SHALONA MURRAY, Appellants

                              V.

MARK RICHARD AND MILLWOOD TRUCKING, INC., Appellees




           On Appeal from the 202nd District Court
                   Bowie County, Texas
               Trial Court No. 23C0123-202




        Before Stevens, C.J., van Cleef and Rambin, JJ.
          Memorandum Opinion by Justice Rambin
                                     MEMORANDUM OPINION

        Nancy Gomez and Shalona Murray sued Mark Richard and Millwood Trucking, Inc.,1

alleging injuries resulting from a collision in which a tractor trailer operated by Richard, in the

course of his employment with Millwood Trucking, rear-ended another tractor trailer, initiating a

chain-reaction, multi-vehicle pileup on the interstate. Richard and Millwood Trucking filed a

no-evidence motion for summary judgment on all of Gomez’s and Murray’s claims, which the

trial court granted.

        A suggestion of death was filed for Richard before the trial court ruled on the motion for

summary judgment. A writ of scire facias was not issued, and a representative of Richard’s

estate was not substituted in his stead.

        On appeal, Gomez and Murray claim that the trial court erred in granting the no-evidence

motion for summary judgment because (1) it was conclusory and lacked the specificity required

by the Texas Rules of Civil Procedure, and (2) they offered more than a scintilla of evidence to

support their claims.

        Upon review, we find that we have no jurisdiction over the appeal against Richard

because Richard died before the trial court’s judgment was entered and no “administrator or




1
 Millwood Trucking noted in its briefing that its name has been spelled inconsistently from the outset of litigation.
Gomez and Murray used “Milwood Trucking” (with one L) in the style of their petition rather than “Millwood
Trucking” (with two Ls), even though they used “Millwood Trucking” in the body of the petition. The one-L
spelling was retained in the style of the trial court’s orders throughout the trial court proceedings. Citation was
issued to Millwood Trucking and served on “Mark Millwood owner of Millwood Trucking,” Millwood Trucking
answered and moved for summary judgment, and summary judgment was granted for Millwood Trucking. Neither
party has asserted any issues with respect to the misspelling. To correct the incorrect spelling, we have changed the
style of the case on appeal from “Milwood Trucking” to “Millwood Trucking.”
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executor or heir”2 was substituted during the trial court proceedings. As a result, the no-evidence

summary judgment as to Richard is void, and we must vacate it.

            With respect to the appeal against Millwood Trucking, we affirm the grant of summary

judgment.

I.          Background3

            On the afternoon of January 27, 2021, a multi-vehicle collision occurred on eastbound

Interstate 30 in Bowie County, Texas. Per the police report, several tractor trailers were stopped

“in the outside lane due to heavy traffic from construction ahead.” (Capitalization normalized).

The report stated that Richard, driving a truck owned by Millwood Trucking, struck the rear of a

tractor trailer in the line of tractor trailers, initiating a chain-reaction of collisions that eventually

struck the rear of Gomez and Murray’s tractor trailer. In their petition, Gomez and Murray

alleged injuries as follows:

            At the time, Plaintiff Shalona Murray was operating a 2020 Freightliner tractor
            and hauling a 2018 Wabash trailer while her co-driver, Plaintiff Nancy Gomez,
            was in the sleeper berth of the tractor. Plaintiff Nancy Gomez braced herself
            upon impact in an attempt to avoid rolling out of the sleeper berth and sustained
            injuries to, inter alia, right arm and right leg whereas Plaintiff Shalona Murray
            sustained injuries to, inter alia, her right shoulder, right leg, and back.

            Gomez and Murray sued several individuals and entities who were the drivers and

owners of the tractor trailers in the chain reaction collision, including Richard and Millwood

2
    See TEX. R. CIV. P. 152.
3
 “We recount the facts in the light most favorable to [Gomez and Murray], the nonmovant[s],” Lozada v. Posada,
718 S.W.3d 262, 265 (Tex. 2025) (per curiam) (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.
2023)), “taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and
resolving any doubts in the nonmovant’s favor,” First Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712
S.W.3d 75, 84 (Tex. 2025) (quoting Weekley Homes, LLC v. Paniagua, 691 S.W.3d 911, 915 (Tex. 2024)
(per curiam)).
                                                       3
Trucking. Gomez and Murray sued Richard and Millwood Trucking on several negligence

theories and Millwood Trucking on a respondeat superior theory due to its employment of

Richard.

       Richard and Millwood Trucking later filed a no-evidence motion for summary judgment.

       Gomez and Murray responded to the motion for summary judgment, attaching evidence

including the police report noting that “Richard’s failure to control speed was a contributing

factor” to the collision; speeding tickets and safety violations issued to Richard during his

employment with Millwood Trucking; Millwood Trucking’s subsequent recertifications of

Richard’s ability to drive for the company; and maintenance logs for the tractor trailer involved

showing warning light issues and air system leaks.

       After a hearing on March 17, 2025, the trial court granted Richard and Millwood

Trucking’s no-evidence motion for summary judgment.

       Prior to the hearing, counsel for Richard and Millwood Trucking filed a suggestion of

death for Richard.    No writ of scire facias was issued, and no estate representative was

substituted in Richard’s stead for the remainder of the proceeding.

       Gomez and Murray appeal.

II.    Jurisdiction

       “The failure to join a jurisdictionally indispensable party constitutes fundamental error,

which an appellate court is bound to notice if the error is apparent from the face of the record.”

In re Coats, 580 S.W.3d 431, 437 (Tex. App.—Texarkana 2019, orig. proceeding) (quoting

Dueitt v. Dueitt, 802 S.W.2d 859, 861 (Tex. App.—Houston [1st Dist.] 1991, no writ)). “A

                                                4
suggestion of death of a defendant notifies a trial court of the fact that a defendant died.” Id. at

435 (quoting Hegwer v. Edwards, 527 S.W.3d 337, 339 (Tex. App.—Dallas 2017, no pet.)).

“The legal consequence of that notice is a jurisdictional defect: that a defendant is beyond the

power of the trial court and the case [against that defendant] cannot proceed until jurisdiction is

acquired over the legal representative of the deceased by service of scire facias.” Id. (quoting

Hegwer, 527 S.W.3d at 339) (citing TEX. R. CIV. P. 152).

       “Scire facias not only abrogates the common-law rule that death abates suit, but also

provides for substitution of any person or persons succeeding to the rights of the original party,

whether executor, administrator, heir, or person holding the same practical relation.”            Id.

(quoting Est. of Pollack v. McMurrey, 858 S.W.2d 388, 390 n.2 (Tex. 1993)). “[T]he revived

action is merely a continuation of the original action, and the substituted party stands in the same

shoes as the original party . . . .” Id. at 435–36 (alteration in original) (quoting Est. of Pollack,

858 S.W.3d at 390 n.2). “And, when a defendant dies and no personal representative is served or

participates in the trial, the resulting judgment is void as a matter of law.” Id. at 436 (citing

Bevers v. Brodbeck, No. 07-04-00475-CV, 2006 WL 2795347, at *1 (Tex. App.—Amarillo

Sept. 29, 2006, pet. denied) (mem. op.)).

       The record before us indicates that a suggestion of death was filed for Richard about two

weeks after Richard and Millwood Trucking filed their motion for summary judgment, some ten

months after Richard’s death.      In addition, after the hearing on the motion, at which the

remaining parties to this appeal acknowledged Richard’s passing, the trial court granted the

motion for summary judgment as to both Richard and Millwood Trucking. Yet “[o]nce a

                                                 5
defendant dies, the defendant is, for purposes of the law, a non-entity due to death.” Id. at 438

(citing Hegwer, 527 S.W.3d at 339). And counsel for Richard and Millwood Trucking had no

standing individually to assert a motion for summary judgment on Richard’s behalf after his

death. See id.

       The no-evidence motion for summary judgment as to Richard was then “essentially no

motion at all,” see id. at 439, and the summary judgment granted on Richard’s behalf is void, see

Klose v. N-Tex Sand & Gravel, LLC, No. 06-24-00017-CV, 2024 WL 4116885, at *4 (Tex.

App.—Texarkana Sept. 9, 2024, no pet.) (mem. op.). For this reason, we have no subject-matter

jurisdiction over Gomez and Murray’s appeal against Richard, and we must dismiss it. See id. at

*2.

       We proceed, then, to consider Gomez and Murray’s appeal against Millwood Trucking.

III.   Standard of Review

       “We review summary judgments de novo, taking as true all evidence favorable to the

nonmovant, and indulging every reasonable inference and resolving any doubts in the

nonmovant’s favor.” First Sabrepoint Cap. Mgmt., L.P., 712 S.W.3d at 84 (quoting Weekley

Homes, LLC, 691 S.W.3d at 915).

       “‘After adequate time for discovery,’ a party ‘may move for summary judgment on the

ground that there is no evidence of one or more essential elements of a claim . . . on which an

adverse party would have the burden of proof at trial.’” Lozada, 718 S.W.3d at 266 (quoting




                                               6
TEX. R. CIV. P. 166a(i)).4 The “motion must state the elements . . . as to which there is no

evidence.” TEX. R. CIV. P. 166a(b)(2)(D). “[A] properly filed no-evidence motion shifts the

burden to the nonmovant to present evidence raising a genuine issue of material fact supporting

each element contested in the motion.” Wal-Mart Stores, Inc. v. Xerox State & Loc. Sols., Inc.,

663 S.W.3d 569, 576 (Tex. 2023). “The [trial] court must grant a no-evidence motion [for

summary judgment] unless the [nonmovant] produces summary judgment evidence raising a

genuine issue of material fact.” TEX. R. CIV. P. 166a(h)(3); see Lozada, 718 S.W.3d at 266.

        We will sustain a no-evidence summary judgment when:

        (a) there is a complete absence of evidence of a vital fact, (b) the court is barred
        by rules of law or of evidence from giving weight to the only evidence offered to
        prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a
        mere scintilla, or (d) the evidence conclusively establishes the opposite of the
        vital fact.

Lozada, 718 S.W.3d at 266 (quoting King Ranch, Inc., 118 S.W.3d at 751). “As relevant here,

‘[l]ess than a scintilla of evidence exists when the evidence is “so weak as to do no more than

create a mere surmise or suspicion” of a fact.’” Id. (alteration in original) (quoting King Ranch,

118 S.W.3d at 751). “And ‘[m]ore than a scintilla of evidence exists when the evidence “rises to

a level that would enable reasonable and fair-minded people to differ in their conclusions.”’” Id.

at 266–67 (alteration in original) (quoting King Ranch, 118 S.W.3d at 751).



4
 The Texas Supreme Court amended Rule 166a by order dated February 27, 2026, effective March 1, 2026, in a
manner that renumbered the rule’s subsections. See Tex. Sup. Ct. Order, Final Approval of Amendments to Rule
166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Feb. 27, 2026). Even though the
amendment was “[o]ther than the deadline changes, . . . not intended to substantively change the law,” the
“amendment[] appl[ies] only to a motion for summary judgment filed on or after March 1, 2026.” Id. Because
Richard and Millwood Trucking filed their motion for summary judgment prior to the effective date of the
amendment, we refer to the provisions of Rule 166a in effect at the time of their filing.
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IV.    Analysis

       In their first issue, Gomez and Murray assert that the trial court erred in granting

Millwood Trucking’s no-evidence motion for summary judgment because “the motion only

made conclusory statements and failed to identify the specific elements of the claims lacking

evidence, as required by Texas Rule of Civil Procedure 166a(i).”            In their second issue

(presented conditionally), Gomez and Murray assert that they produced evidence to survive

summary judgment. We find that Millwood Trucking’s no-evidence motion gave sufficient

notice to put the burden on Gomez and Murray to produce evidence of damages and causation.

We further find that Gomez and Murray failed to produce any evidence of damages and

causation. Accordingly, we affirm the trial court’s grant of summary judgment.

       “A no-evidence motion for summary judgment must ‘specifically state the element or

elements for which there is no evidence.’” State v. Three Thousand, Seven Hundred Seventy-

Four Dollars and Twenty-Eight Cents U.S. Currency (Three Thousand), 713 S.W.3d 381, 387

(Tex. 2025) (quoting Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 695

(Tex. 2017) (citing TEX. R. CIV. P. 166a)). Appellate courts are instructed to strictly enforce this

rule; a movant may not merely ‘list[] each element of the plaintiff’s claim and then assert[] that

the plaintiff has no evidence to support “one or more” or “any of” those elements.’” Id.

(alterations in original) (quoting Hansen, 525 S.W.3d at 695–96). “This requirement is intended

to provide the nonmovant ‘with adequate information for opposing the motion[] and to define the

issues for the purpose of summary judgment.’” Id. (alteration in original) (quoting Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009)).

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            Compare two statements from Three Thousand:

            [A] movant may not merely “list[]                 A no-evidence motion provides
            each element of the plaintiff’s claim             adequate notice when the motion
            and then assert[] that the plaintiff has          describes the challenged elements in
            no evidence to support ‘one or more’              sufficient detail to identify them.[6]
            or ‘any of’ those elements.”[5]

            Where is the line between “merely ‘list[ing]’” and “identify[ing]”? Id. at 387, 388. It is

not a matter of semantic “gotcha:” “[t]hat a motion includes the words ‘one or more,’ ‘any,’ and

‘each’ is not in itself fatal; rather, the problem arises when that language is all that a movant

includes.” Id. at 388. Three Thousand provided an illustrative example of detail in a no-

evidence motion that was sufficient to identify challenged elements:

            There is no evidence of one or more of the elements for a civil forfeiture case, on
            which the State has the burden of proof at trial: that the property was used in a
            manner as described in Paragraph VIII of Plaintiff’s Original Notice of Seizure
            and Intended Forfeiture [alleging that the property was used or intended to be
            used in the commission of a felony under Health and Safety Code Chapter 481];
            and, that the property is contraband as defined by Texas Code of Criminal
            Procedure.

Id. (alteration in original).

            The key is whether the no-evidence motion provides “notice of the elements challenged.”

Id.

            In examining whether notice has been provided, a reviewing court can consider the non-

movant’s response to the motion. Id. (“[T]he State demonstrated that it had notice of the




5
    Three Thousand, 713 S.W.3d at 387 (alterations in original) (quoting Hansen, 525 S.W.3d at 695–96).
6
    Id. at 388.
                                                          9
elements challenged—its response discussed the affidavit as evidence that the property was used

in the commission of a felony under Health and Safety Code Chapter 481.”).

        Millwood Trucking’s “no evidence motion” asserted that

        The elements of a common-law negligence claim are (1) a legal duty; (2) breach
        of that duty; and (3) damages proximately resulting from the breach. Elephant
        Ins. Co., LLC v. Kenyon, 644 S.W.3d 137 (Tex. 2022). . . .

              There is no evidence of any of the elements of negligence against these
        Defendants.

                 ....

                 To prove negligent hiring, training, supervision, monitoring, or retention,
        Plaintiffs must prove the following elements: (1) the employer owed a duty to
        hire, train, supervise, monitor, or retain competent employees, (2) that duty was
        breached, and (3) the breach proximately caused the alleged damage. . . .

               Plaintiffs have failed to and cannot provide evidence to support any of the
        elements of negligent hiring, training, supervision, monitoring, [or] retention
        claims against Millwood Trucking, Inc.[7]

        Thus, the motion does include the word “any.” The response of Gomez and Murray,

however, states as follows:

        Under common-law, a negligence claim consists of the following elements: (1) a
        legal duty; (2) breach of that duty; and (3) damages proximately resulting from
        the breach. Elephant Ins. Co., LLC[, 644 S.W.3d 137]. To survive summary
        judgment, a plaintiff only needs to present more than a scintilla of evidence of
        these elements. Here, the police report and circumstances of the collision provide
        sufficient evidence to create a fact issue for a jury.

(Emphasis added).



7
 Millwood Trucking’s motion set out negligent entrustment, negligent maintenance, respondeat superior, and
negligence per se in similar fashion, i.e., by providing caselaw describing the elements, including causation of harm
among those elements, and then stating that Gomez and Murry have no evidence of that “claim[]”, “cause,” “legal
theory,” or “action.”
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        Gomez and Murray, therefore, understood that Millwood Trucking’s “no evidence”

motion had put “damages proximately resulting from the breach” at issue.

        Concerning damages and causation, Gomez and Murray point to the allegations in their

original petition. That is not evidence. Regarding the cause of the accident, Gomez and Murray

point to the accident report attached to their summary judgment response, but they do not urge

that it is evidence of injuries.

        Because we affirm for lack of evidence of damages and causation, we do not reach the

other matters asserted by the parties. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520

S.W.3d 39, 45 (Tex. 2017) (“When a trial court does not specify the grounds it relied upon in

making its determination, reviewing courts must affirm summary judgment if any of the grounds

asserted are meritorious.”).

V.      Conclusion

        We vacate the trial court’s summary judgment granted on behalf of Mark Richard and

dismiss the case as to him. We affirm the trial court’s summary judgment granted on behalf of

Millwood Trucking.




                                            Jeff Rambin
                                            Justice

Date Submitted:         September 5, 2025
Date Decided:           April 21, 2026




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