Twee Vu Sosa and Mitchell Sosa v. Jeffery Miller

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00004-CV
__________________

TWEE VU SOSA AND MITCHELL SOSA, Appellants

V.

JEFFERY MILLER, Appellee

__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 20-01-01576-CV
__________________________________________________________________

MEMORANDUM OPINION

This is an appeal from a final summary judgment. Appellants Twee Vu Sosa

and Mitchell Sosa (the “Sosas”) sued appellee Jeffery Miller (“Miller”) for recovery

of damages arising from an alleged sexual assault. The trial court granted summary

judgment in Miller’s favor. In three issues, the Sosas argue that the trial court erred

and abused its discretion by excluding evidence of damages, erred in granting final

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summary judgment against them, and erred and abused its discretion in denying their

request for a new docket control order and for a continuance.

Because we hold that the trial court improperly granted Miller’s motion for

summary judgment, we reverse and remand.

Background

On January 31, 2020, the Sosas filed their Original Petition against Miller.

The Sosas alleged claims against Miller for assault by offensive physical contact,

intentional infliction of emotional distress, and loss of consortium. The Sosas sought

damages of more than $1 million for (a) past and future medical expenses; (b) past

and future loss of earning capacity; (c) lost wages; (d) past and future physical pain

and mental anguish; (e) past and future loss of consortium; (f) attorney’s fees and

costs; and (g) all other damages allowed under Texas Law. Additionally, the Sosas

sought exemplary damages.

On March 30, Miller filed his original answer, generally denying the Sosas’

claims. On the same day, Miller sent Requests for Disclosure to the Sosas. Request

number four asked the Sosas to “[s]tate the amount of economic damages and any

method of calculating the damages[]” pursuant to Texas Rule of Civil Procedure

194.2(d). 1

1Any reference to Rules 193-194 of the rules of civil procedure herein is to

the version of the rule that existed prior to January 1, 2021. See Final Approval of
2
On September 29, 2020, the trial court signed a Docket Control Order setting

the case for trial on June 1, 2021. Discovery responses were due 90 days before trial

– or March 3, 2021. The docket control order contained the following statement:

UNLESS OTHERWISE ORDERED BY THE COURT, THE
FOREGOING DATES AS CALCULATED FROM THE TRIAL
DATE STATED HEREIN REMAIN THE APPLICABLE
DEADLINES FOR THIS CASE EVEN IF THE TRIAL DATE IS
RESET AND REGARDLESS OF THE REASON FOR ANY
RESET.

On April 28, 2021, the Sosas filed their first Motion for Continuance. The

motion requested a continuance based on (1) the quarantine of the Sosas’ attorneys

after an associate attorney tested positive for COVID-19; (2) the closing of the

Sosas’ attorneys’ office building for a week during a winter freeze; and (3) the need

for additional time to prepare for trial due to the previously described circumstances.

The motion was set for submission on May 14.

On May 13, Miller responded to the Sosas’ Motion for Continuance, arguing

that the Sosas failed to prosecute the case since its inception. Miller’s response also

objected to the entry of a new docket control order because he would be unfairly

prejudiced and harmed if the court were to reopen deadlines with which the Sosas

Amendments to Texas Rules of Civil Procedure 47, 99, 169, 190, 192, 193, 194, 195,
196, 197, and 198, Misc. Docket No. 20-9153 (Tex. Dec. 23, 2020) (amending the
rules and noting that “[t]he rules amended by this Order continue to govern
procedures and limitations in cases filed before January 1, 2021[]”).
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had already failed to comply. The trial court granted the Motion for Continuance on

May 16.

On May 18, the trial court reset the trial date to August 2, 2021. However, the

trial court kept other deadlines as set forth in the September 29, 2020 Docket Control

Order:

UNLESS OTHERWISE ORDERED BY THE COURT, THE OTHER
DATES AS CALCULATED FROM THE TRIAL DATE STATED IN
THE DOCKET CONTROL ORDER SIGNED ON 09/29/2020
REMAIN THE APPLICABLE DEADLINES FOR THIS CASE
REGARDLESS OF THE REASON FOR THE RESET.

On July 12, Miller filed a Motion to Strike and Exclude Plaintiffs’ Evidence

of Damages. Miller argued that since the Sosas failed to disclose the amount and

method of calculating their economic damages as required by Texas Rule of Civil

Procedure 194.2(d) and the court’s Docket Control Order, they should be prevented

from introducing evidence of damages, citing Texas Rule of Civil Procedure

193.6(a). Miller claimed exclusion of evidence of damages was necessary in order

to protect Miller from unfair surprise and prejudice, and to preserve Miller’s ability

to present an adequate defense against the Sosas’ claims.

On July 14, the Sosas filed their Second Motion for Continuance, asserting

they “need[ed] additional time to prepare for trial due to the Defendant’s continued

failure to engage in discovery.” The motion asserted that the first “continuance was

necessary to complete discovery due to issues plaintiffs’ counsel had related to the
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COVID-19 pandemic” and that Miller had opposed the Sosas’ efforts to take Miller’s

deposition and had failed to respond to discovery requests. The motion also

requested a new scheduling order on the asserted basis that resetting a trial deadline

nullifies previous deadlines.

On July 22, the Sosas served Initial Disclosures, and on July 23, they filed a

Response to Defendant’s Motion to Strike and Exclude Plaintiffs’ Evidence of

Damages, repeating the arguments set forth in their Second Motion for Continuance

and indicating they had responded to Miller’s Request for Disclosure.

Miller filed his Response to Plaintiffs’ Second Motion for Continuance and

Objection to the New Docket Control order on July 28. Miller opposed the second

continuance on the basis that the Sosas had not served any discovery during the

court’s discovery period as set forth in the September 29, 2020 docket control order

which had not been changed by the first continuance. Once again, Miller asserted he

would be unfairly prejudiced and harmed if the court were to enter a new Docket

Control Order. 2

On July 30, the trial court granted Miller’s Motion to Quash and Miller’s

Motion to Strike and Exclude Damages, indicating “No response to the motions have

been filed[,]” despite Plaintiffs’ Response to Defendant’s Motion to Strike and

2Miller filed an Amended Response that corrected clerical errors in his
original response, but otherwise the substance of Miller’s arguments are the same.
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Exclude Plaintiffs’ Evidence of Damages having been filed on July 23. On that same

day, the judge of the 457th District Court recused himself and requested a transfer

of the case, and on August 20 the judge of the 284th District Court accepted the

transfer.

Also on July 30, Miller filed a Reply to Plaintiffs’ Response to Defendant’s

Motion to Strike and Exclude Plaintiffs’ Evidence of Damages. In the reply, Miller

acknowledged that the Sosas had served Initial Disclosures on July 23, but argued

they were untimely since the March 3 discovery deadline had not been extended

when the court continued the first trial setting. Miller argued the Sosas’ untimely

disclosures still failed to disclose the amount and method of calculating damages

because they merely listed the elements of damages and stated, “Amount will be

determined by jury.” Miller once again asserted unfair surprise and prejudice and

urged the court to strike and exclude the Sosas’ damages under Rule 193.6(a)

because of their failure to comply with Rule 194 and the court’s docket control order.

Id. 193.6(a), 194.

On August 23, the Sosas filed a Motion to Reconsider and for Docket Control

Order. Noting that the July 30 Order on Defendant’s Motion to Strike and Exclude

Plaintiffs’ Evidence of Damages incorrectly indicated that no response to the motion

had been filed, the Sosas complained that the 457th District Court had abused its

discretion by failing to review and consider their July 23 response. The Sosas also
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asserted the judge of the 457th District Court should not have ruled on the motion

“having knowledge of underlying facts requiring his recusal.” Lastly, the Sosas

requested a new Docket Control Order in light of the global pandemic, the Texas

Supreme Court’s various Emergency Orders, and the February 2021 winter storm.

Miller filed a Motion for Summary Judgment with Motion for Leave on

October 1. Miller argued leave was justified “because the Court’s prior ruling made

this motion viable after the dispositive motion deadline.” The motion asked the trial

court to grant summary judgment and to dismiss the Sosas’ claims because there was

no evidence of damages – a required element to prove their claims for assault,

intentional infliction of emotional distress, and loss of consortium according to

Miller – since all evidence of damages related to the claims that had been stricken

and excluded. Miller concluded that there was no genuine issues of material fact

because the Sosas could not prove damages.

The Sosas responded, claiming that “[g]ood cause exists for the Plaintiffs’

failure to make, amend, or supplement the disclosure of the amount and any method

of calculating economic damages due to the global pandemic caused by COVID-19,

coupled with the severe winter storm in February 2021.” The Sosas also alleged that

their “failure to make, amend, or supplement the disclosure of the amount and any

method of calculating economic damages did not unfairly surprise or prejudice

Defendant and fact questions remain for this Court as the trier of fact.” The Sosas
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further claimed that they provided disclosures on July 22, 2021, thereby preventing

any allegation of unfair surprise or unfair prejudice for a trial setting of January 3,

2022. The Sosas requested leave so that a new docket control order could be issued

to provide for a future deadline for discovery responses and asked the court to

consider the emergency COVID-19 orders promulgated by the Texas Supreme Court

in granting deadline extensions. The Sosas attached several emergency orders

related to the COVID-19 pandemic as part of their response, as well as their Initial

Disclosures which were served on Miller on July 22, 2021.

The Sosas filed their First Supplemental Response to Miller’s Motion to Strike

on November 11.3 They argued that they had good cause for failing to disclose the

requested material ninety days before June 1, 2021 because of (1) the effects of

COVID-19, (2) the loss of ninety percent of their attorneys’ office staff, and (3) the

inability of counsel to contact the plaintiffs due to such conditions. The Sosas further

argued that Miller would not be unfairly surprised or prejudiced because Miller had

had the material since July 22, 2021.

In his reply, Miller countered that the pandemic and Texas freeze were not

excuses. He also reiterated that the discovery deadlines as set forth in the September

3Per Miller’s Amended Motion for Summary Judgment, the Motion to Strike

was resubmitted to the 284th District Court at the request of the trial court.
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29, 2020 docket control order applied and the discovery responses were due by

March 3, 2021.

On November 14, the trial court granted Miller’s Motion to Quash the Notice

of Intention to take Oral Deposition and Motion to Strike and Exclude Damages.

The order acknowledged that COVID and the February 2021 winter storm created

delays but indicated those issues did not explain why the Sosas waited until July 22,

2021 to serve Initial Disclosures when the discovery deadline passed on March 3,

2021. The trial court explained that the proper remedy was for the Sosas to move to

continue the DCO deadlines immediately upon return to the office, but they did not

do that, showing a lack of diligence. After granting Miller’s Motion to Quash, the

order states, “It is further ORDERED that Defendant’s Motion to Strike and Exclude

Plaintiffs’ Evidence of Damages is GRANTED.”

Miller subsequently filed a Refiled, Amended Motion for Summary Judgment

with Motion for Leave, making the same arguments as in his original motion. Miller

again alleged that a claim for assault, intentional infliction of emotional distress, and

loss of consortium all require the establishment of an element of damages, and that

the Sosas had failed to show any evidence of damages. Miller’s only summary

judgment evidence was the Order Granting Motion to Strike and Exclude Damages

signed on November 14. The Sosas responded, making similar arguments as they

did in their first response.
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On December 20, 2021 the trial court signed an Order Denying Motion for

Continuance, Order Granting Motion for Leave, and Final Judgment. The trial court

granted Miller’s Refiled, Amended Motion for Summary Judgment, ordered that the

Sosas take nothing on their claims and causes of action against Miller, and awarded

Miller costs of court. The Sosas appealed.

Analysis

We begin by addressing the Sosas’ second issue in which they assert that the

trial court erred in granting Miller’s motion for summary judgment. We note at the

outset that Miller filed a traditional motion for summary judgment under Rule

166a(c) rather than a no evidence motion under Rule 166a(i). 4 Tex. R. Civ. P. 166a.

A party who files a traditional motion for summary judgment has the burden to show

that no genuine issue of material fact exists and that the party is entitled to judgment

as a matter of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009). To succeed on a traditional motion for summary

judgment, a defendant is generally required to conclusively negate at least one

essential element of each of the plaintiff’s causes of action or to conclusively

establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez,

4We note that the introductory paragraph of Miller’s motion also claims “no

evidence of damages exists.” However, the motion refers to itself as a “traditional
summary judgment” and neither party has claimed that Miller’s motion is a no-
evidence motion.
10
941 S.W.2d 910, 911 (Tex. 1997); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494,

508-09 (Tex. 2010).

“When the trial court does not specify the grounds for its ruling, a summary

judgment must be affirmed if any of the grounds on which judgment is sought are

meritorious.” Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

Here, the trial court did not specify the grounds for its ruling, but Miller’s motion

presents only two grounds for summary judgment: (1) “With the Order granting

Defendant’s Motion to Strike and excluding any evidence of damages, [Miller] has

successfully disproven the element of damages on each of [the Sosas’] claims[;]”

and (2) “Because [the Sosas] have failed to disclose the damages required, there is

no genuine issue as to any material fact. Since there is no genuine issue of any

material fact, [Miller] is entitled to a summary judgment on [the Sosas’] claims for

assault, intentional infliction of emotional distress, and loss of consortium.” The trial

court’s November 14, 2021 Order on Defendant’s Motion to Strike and Exclude

Plaintiffs’ Evidence of Damages is the only “summary judgment evidence” attached

to, or referenced in, Miller’s motion.

On appeal, the Sosas argue the trial court erred in granting Miller’s motion for

summary judgment because “Miller did not carry his burden of proof for a traditional

summary judgment.” The Sosas assert that Miller’s motion constitutes a “global

attack on all of the Sosa[s’] damages – economic and non-economic – and, therefore,
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all their causes of action[,]” and that Miller’s summary judgment evidence is

“defective” because the only evidence on which Miller relies is the trial court’s

November 14 order which the Sosas claim is “defective” and “erroneous[.]”

In response, Miller argues the trial court properly granted summary judgment

because in order to recover on their claims for assault, intentional infliction of

emotional distress, and loss of consortium, the Sosas were required to establish that

they sustained damages, but “on November 14, 2021, [the trial court] struck and

excluded [the Sosas’] evidence of damages, thereby resulting in [the Sosas’] failure

to prove any damages and consequentially establish a ca[u]se of action.” In a

footnote, Miller argues the Sosas waived any distinction between economic and non-

economic damages by failing to raise such a distinction in the trial court. Therefore,

we must consider whether the Sosas properly preserved their complaints for

appellate review.

“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.” Tex. R.

Civ. P. 166a(c). However, a non-movant may argue for the first time 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 summary judgment.” Houston v. Clear

Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (emphasis in original). “The

non-movant has no burden to respond to or present evidence regarding the motion
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until the movant has carried its burden to conclusively establish the cause of action

or defense on which its motion is based.” State v. Ninety Thousand Two Hundred

Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292

(Tex. 2013). “On appeal, the movant still bears the burden of showing that there is

no genuine issue of material fact and that the movant is entitled to judgment as a

matter of law.” Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999);

Mosaic Baybrook One, L.P. v. Simien, 674 S.W.3d 234, 252 (Tex. 2023). “Summary

judgments must stand on their own merits, and the non-movant’s failure to answer

or respond cannot supply by default the summary judgment proof necessary to

establish the movant’s right.” Houston, 589 S.W.2d at 678. Therefore, although Rule

166a(c) generally prevents a non-movant from raising new issues on appeal, a non-

movant may still assert for the first time on appeal that the movant’s summary

judgment evidence is legally insufficient to support the motion. Weekley Homes v.

Paniagua, 646 S.W.3d 821, 826 (Tex. 2022).

Because the Sosas are free to argue for the first time on appeal that “Miller

did not meet his summary judgment burden,” we must examine both the legal

sufficiency of the grounds expressly presented to the trial court in Miller’s motion

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and the legal sufficiency of the evidence offered in support of those grounds.5

Houston, 589 S.W.2d at 678, and Weekley Homes, 646 S.W.3d at 826.

“We review a summary judgment de novo.” Mann Frankfort, 289 S.W.3d at

848. “If the trial court’s ruling required the trial court to examine evidence, the

evidence the court considered is reviewed, in the appeal, in the light most favorable

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

against the motion.” Spears v. Haynes, No. 09-18-00147-CV, 2020 Tex. App.

LEXIS 463, at *9 (Tex. App.—Beaumont, Jan. 16, 2020, no pet.) (mem. op.)

(internal quotations omitted); see also City of Keller v. Wilson, 168 S.W.3d 802, 824

(Tex. 2005).

As indicated above, Miller’s motion presents two grounds for summary

judgment. We address the second ground first. In it, Miller asserts, “Because [the

Sosas] have failed to disclose the damages required, there is no genuine issue as to

any material fact. Since there is no genuine issue of any material fact, [Miller] is

entitled to a summary judgment on [the Sosas’] claims for assault, intentional

infliction of emotional distress, and loss of consortium.”

5We consider the Sosas’ assertion that “Miller did not carry his burden of

proof for a traditional summary judgment,” as adequately presenting a challenge to
the legal sufficiency. See Weekley Homes, 646 S.W.3d at 826-27 (citing Tex. R.
App. P. 38.1(f)).
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Texas Rule of Civil Procedure 194.2(d) requires a party to disclose “the

amount and any method of calculating economic damages.” Tex. R. Civ. P. 194.2(d).

“Paragraph (d) does not require a party, either a plaintiff or a defendant, to state a

method of calculating non-economic damages, such as for mental anguish.” Id. cmt.

2. See also Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637, 653 (Tex.

App.—Houston [1st Dist.] 2014, pet. denied); Baker v. Baker, 469 S.W.3d 269, 278

(Tex. App.—Houston [14th Dist.] 2015, no pet.). In their petition, the Sosas allege

Miller sexually assaulted Ms. Sosa, for which they seek economic elements of

damages, such as medical expenses, loss of earning capacity and lost wages, as well

as non-economic damages, such as physical pain, mental anguish and loss of

consortium.6 Miller’s motion for summary judgment acknowledges the Sosas seek

these elements of damages, yet it asks for a summary judgment dismissing “all of

the [Sosas’] claims against him,” and the trial court entered final summary judgment

that the Sosas “take nothing” on their claims.

6“When someone suffers personal injuries, the damages fall within two broad

categories - economic and non-economic damages. Traditionally, economic
damages are those that compensate an injured party for lost wages, lost earning
capacity, and medical expenses. Non-economic damages include compensation for
pain, suffering, mental anguish, and disfigurement. ‘Hedonic’ damages are another
type of non-economic damages and compensate for loss of enjoyment of life.”
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 2003).
15
In his motion, and on appeal, Miller cites Keystone Architects v. Lanai

Development, L.L.C., No. 13-05-542-CV, 2008 Tex. App. LEXIS 1469 (Tex.

App.—Corpus Christi, Feb. 28, 2008, no pet.) (mem. op.), for the proposition that

“a failure to timely provide a calculation of economic damages will prevent the

establishment of a cause of action plead, for which damages are an essential

element.” However, Keystone Architects was a residential construction dispute with

allegations of “breach of contract, breach of fiduciary duty, negligence, fraud, and

deceptive trade practice act (‘DTPA’) violations.” Id. at *1 and *4. When the case

was tried, the plaintiff provided evidence of “Diminution in Market Value,”

“Investment Loss,” “Restitution--Return of Fees Earned by Defendants (unjust

enrichment/fraud),” “Over Budget/Itemized Defective Items,” and “Loss of Profits.”

Id. at *10-11. There is no indication the plaintiff in Keystone Architects ever sought

any non-economic damages. Therefore, when the court of appeals held that the

plaintiff had failed properly to disclose the amount and method of calculating

economic damages, it necessarily followed that the plaintiff could not establish any

of their causes of action.

Miller also cites C.A. Walker Construction Company v. J.P. Southwest

Concrete, Inc., No. 01-07-00904-CV, 2009 Tex. App. LEXIS 2228, at *2 (Tex.

App.—Houston [1st Dist.] Apr. 2, 2009, no pet.) (mem. op.). Walker involved a

breach of contract claim between a concrete subcontractor and a general contractor.
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The case was tried to the court, and the evidence of damages included amounts for

“unpaid work” and “lost profits.” Id. at *4. As in Keystone Architects there is no

indication any party sought any non-economic damages. We do not question the

reasoning of Walker or Keystone Architects where only economic damages are

sought, but they have no application in this case where the Sosas seek both economic

and non-economic damages for tort claims arising out of an alleged sexual assault.

The fact that the Sosas failed to disclose the amount and method of calculating their

economic damages is not a basis for summary disposition of their claims for non-

economic damages.

Therefore, we conclude the second ground presented to the trial court in

Miller’s motion – that Miller was entitled to summary judgment on all the Sosas’

claims because they failed to properly disclose their economic damages – is

insufficient as a matter of law to support the trial court’s final summary judgment.

We now consider the first ground presented by Miller’s motion: “With the

Order granting Defendant’s Motion to Strike and excluding any evidence of

damages, [Miller] has successfully disproven the element of damages on each of [the

Sosas’] claims.” As “summary judgment evidence” in support of this ground, Miller

attached and incorporated the trial court’s November 14, 2021 Order on Defendant’s

Motion to Strike and Exclude Plaintiffs’ Evidence of Damages. The order in

question first grants Miller’s Motion to Quash and Motion for Protective Order and
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then states, “It is further ORDERED that Defendant’s Motion to Strike and Exclude

Plaintiffs’ Evidence of Damages is GRANTED.”

Although both parties appear to believe the order strikes all the Sosas’

damages, rather than just their economic damages, the order does not expressly say

so. In our de novo review, we are required to view the evidence “in the light most

favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts against the motion.” Spears, 2020 Tex. App. LEXIS 463, at *9. We interpret

court orders the same way that we ascertain the meaning of other written

instruments. Lone Star Cement Corp. v. Fair, 467 S.W.2d 402, 404-05 (Tex. 1971).

In general, when interpreting a trial court order that is ambiguous, an appellate court

may consider the entire record in determining the trial court’s intent in entering the

order; in particular, it should interpret the order “in light of the motion upon which

it was granted.” Id. “Only where an order’s terms are ambiguous – that is, susceptible

of more than one reasonable interpretation – do we look to the surrounding

circumstances to discern their meaning.” Kourosh Hemyari v. Stephens, 355 S.W.3d

623, 626 (Tex. 2011) (citing Lone Star, 467 S.W.2d at 404-05); see also In re

Elizondo, 544 S.W.3d 824, 827 (Tex. 2018) (per curiam) (reviewing court may look

at the record to determine the parties intent “only if the order is not clear and

unequivocal”). A court’s order is considered ambiguous only if, applying standard

rules of construction, it is susceptible to more than one reasonable interpretation.
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Stephens, 355 S.W.3d at 626. However, courts enforce unambiguous orders literally.

Id.

Here, the order is not clear and unequivocal. Because it simply grants Miller’s

motion without any other language specifying the nature of the relief granted, its

meaning cannot be discerned without reference to the motion it grants. Although the

order recites the full title of the motion, and although the motion refers to itself as a

motion to strike the Sosas’ “Damages” without qualification, it is the substance of

the motion, not its title, that matters. “We look to the substance of a plea for relief to

determine the nature of the pleading, not merely at the form of title given to it.” State

Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (citing Tex. R. Civ. P. 71)

(“When a party has mistakenly designated any plea or pleading, the court, if justice

so requires, shall treat the plea or pleading as if it had been properly designated.”).

Therefore, it is necessary to examine the substance of Miller’s Motion to Strike and

Exclude Plaintiffs’ Evidence of Damages, in the context of the entire record, to

determine the meaning of the motion, and, therefore, the order.

In the motion, Miller asserts the Sosas failed to respond to his Request for

Disclosure, a copy of which is attached to the motion. The specific request in

question expressly references Rule 194.2(d) and asks the Sosas to “[s]tate the

amount of economic damages and any method of calculating the damages.”

(emphasis added). The motion’s “Arguments and Authorities” section begins with
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the assertion, “Plaintiffs failed to disclosure [sic] the amount and method of

calculating its economic damages under Rule 194.2(d)[,]” and ends with the

conclusion, “Thus, any attempt by Plaintiffs to introduce into evidence material or

information which serves as the basis of alleged economic damages in their live

petition must be excluded. Similarly, this evidence must be excluded to prevent

rewarding Plaintiffs’ lack of due diligence and protect Defendant from unfair

surp[r]ise, prejudice, and presenting an adequate defense against Plaintiffs’ claims.”

(emphasis added). In between these references to “economic damages,” the motion

sometimes refers to “economic damages” and other times simply to “damages.”

Non-economic damages are never mentioned. The motion never asserts that the

Sosas’ failure to disclose economic damages should result in the exclusion of

evidence of non-economic damages. The motion relies on the same arguments and

authorities as those which we have held, above, do not support the striking of the

Sosas’ non-economic damages.

The motion does not contain a prayer, but in its “Conclusion,” the motion

asserts, “Plaintiff’s damages must be struck and excluded under Texas Rule of Civil

Procedure 193.6(a) because of a complete and continued failure to comply with Rule

194 and this Court’s Docket Control Order. As a result, the Court should order that

Plaintiffs cannot establish their causes of action.” (emphasis added). Because it

argues the court should strike the Sosas’ “damages[,]” without qualification, and
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because it asserts the Sosas “cannot establish their causes of action[,]” the motion’s

“Conclusion” can reasonably be construed as seeking to strike all of the Sosas’

damages. But by referring to the Sosas’ alleged “failure to comply with Rule 194”

as the reason for seeking to strike the Sosas’ “damages[,]” the “Conclusion” can also

reasonably be interpreted as seeking the exclusion of the Sosas’ economic damages

only.

Viewing the entirety of Miller’s Motion to Strike and Exclude Plaintiffs’

Evidence of Damages “in the light most favorable to the nonmovant, indulging every

reasonable inference and resolving any doubts against the [summary judgment]

motion,” we conclude the motion could be reasonably construed as seeking the

exclusion of economic damages only. Therefore, we also conclude that the trial

court’s November 14 order could reasonably be construed as striking the Sosas’

evidence of economic damages only. To the extent the order could also reasonably

be construed as striking all the Sosas’ damages, it remains ambiguous because it is

reasonably susceptible to more than one meaning. Put simply, the November 14

order does not conclusively establish that the court struck or excluded all of the

Sosas’ damages as Miller’s motion for summary judgment asserts. Therefore, the

first ground expressly presented to the trial court in Miller’s motion for summary

judgment is insufficient as a matter of law. Because neither of Miller’s grounds is

legally sufficient, we sustain the Sosas’ second issue.
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Conclusion

Having sustained the Sosas’ second issue, it is unnecessary for us to consider

the Sosas’ first and third issues. We reverse the trial court’s summary judgment and

remand to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

KENT CHAMBERS
Justice

Submitted on November 21, 2023
Opinion Delivered August 29, 2024

Before Golemon, C.J., Wright and Chambers, JJ.

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