Enrique O. Guillen and Victoria Guillen v. Cristian Andres Gomez and Los Fresnos Consolidated Independent School District

• Court: Court of Appeals of Texas
• Decided: April 17, 2025
• Docket: 13-22-00515-CV
• Status: Published

Opinion

NUMBER 13-22-00515-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ENRIQUE O. GUILLEN AND VICTORIA GUILLEN, Appellants,

v.

CRISTIAN ANDRES GOMEZ AND LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT, Appellees.

ON APPEAL FROM THE 445TH DISTRICT COURT OF CAMERON COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Cron Memorandum Opinion by Justice Cron

This case arises from a fender bender that occurred in the Los Fresnos High

School parking lot. Proceeding pro se, appellants Enrique O. Guillen and Victoria Guillen appeal from three orders: an interlocutory order granting appellee Los Fresnos

Consolidated Independent School District’s plea to the jurisdiction; another interlocutory

order denying the Guillens’ motion to rejoin the School District to the suit; and a final order

granting appellee Cristian Andres Gomez’s combined no-evidence and traditional motion

for summary judgment. In what we construe as three primary issues, which we have

reorganized, the Guillens complain that the School District was improperly dismissed from

the suit; the trial court failed to “enforce” the Texas Rules of Civil Procedure with respect

to the Guillens’ discovery requests and “conspired” with other public servants to deny

them due process; and summary judgment was improper because the Guillens raised

material fact issues on their claims against Gomez. We affirm.

I. BACKGROUND

The incident occurred during student dismissal on May 17, 2018, at approximately

3:45 p.m. Enrique, driving a Toyota Tundra, had picked up his daughter Victoria and was

attempting to exit the parking lot when they were involved in a collision with a Dodge

Caliber driven by Gomez. Enrique contends that Gomez was at fault and intentionally

caused the collision. After reviewing surveillance video of the incident, School District

police officer Daniel Tamez filed a Texas Peace Officer’s Crash Report faulting Enrique

for causing the accident. Specifically, Tamez concluded that Enrique passed a stopped

vehicle, failed to control his speed, and struck Gomez’s vehicle while “attempting to merge

back into the traffic lane.”

Proceeding pro se, Enrique filed suit against the School District and Gomez. 1 With

1 Enrique also sued Allstate, Gomez’s auto insurance carrier, but Allstate was dismissed from the

2 respect to the School District, Enrique alleged in his fourth amended petition that the

School District alters the normal flow of traffic in its parking lot during school dismissal,

and Tamez “was supposed to be controlling traffic but was in his vehicle keeping cool.”

Enrique also alleged that Tamez purposefully filed a false police report by attributing the

accident to Enrique, which caused Enrique’s auto insurance premiums to increase.

Enrique implied that Tamez lied on the report out of “resentment” because Enrique

insisted that the officer file a report rather than letting the drivers handle it themselves

through their respective insurance carriers, as Tamez had requested.

The School District filed a plea to the jurisdiction arguing that Enrique failed to

allege a valid waiver of governmental immunity under the Texas Tort Claims Act (TTCA).

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). The School District noted that

Enrique identified Tamez as a School District employee but never alleged the same about

Gomez. The School District affirmatively denied that Gomez was its employee and

attached a copy of the crash report, which indicated: (1) Gomez was seventeen years old

at the time of the accident; and (2) he was operating a vehicle owned by Rodolfo Gomez.

Enrique filed multiple responses but never alleged or provided evidence demonstrating

that Gomez was a School District employee. Instead, he argued that his claim sounded

in premises liability, and thus, the School District’s liability was waived under § 101.021(2)

of the TTCA. He also identified §§ 101.0215(25), 101.055(3), 101.056(2), and 101.060(1)

as waivers of the School District’s immunity under the facts of the case. During a hearing

on the matter, Enrique conceded that Gomez was not a School District employee. The

case and is not a party to this appeal. 3 trial court granted the School District’s plea and dismissed it from the suit.

After the case was transferred to another trial court, 2 Victoria joined the suit as a

pro se plaintiff and alleged that she suffered personal injuries as a result of the accident.

The Guillens then filed a motion to rejoin the School District as a defendant, reiterating

the same arguments Enrique previously made to the prior trial court. The new trial court

reaffirmed the dismissal and denied the motion to rejoin the School District.

Finally, Gomez filed a combined no-evidence and traditional motion for summary

judgment. The live petition when the trial court heard the motion was “Plaintiffs’ Second

Amended Petition to New Court,” which was actually the ninth amended petition filed in

the case. In it, the Guillens alleged that Gomez “deliberately and with malice used his

motor vehicle as a weapon against [them].” They also alleged that after the initial impact,

Gomez “continued to ram his vehicle into [their] vehicle[,] trying to push it towards the

parked car area.” They identified their theories of liability as “intentional” assault and

“bullying.” They further claimed that Victoria was diagnosed with agoraphobia after the

incident, and Enrique had suffered $21,464 in out-of-pocket medical expenses for her

mental health treatment, as well as $869.83 in property damage to his vehicle.

Gomez’s motion for summary judgment challenged each element of the assault

claim. In support of his traditional motion for summary judgment, Gomez produced

Tamez’s crash report, still images taken from the security footage, and records from

Victoria’s medical providers. Gomez argued that this evidence conclusively established

that Enrique caused the accident and that Victoria could not prove that her alleged injuries

2 The original trial judge recused himself after Enrique filed a motion accusing him of being biased

for granting a motion to compel Enrique to produce evidence. 4 were proximately caused by the incident. The Guillens filed their “Objection to Summary

Judgment Motion” and attached numerous unauthenticated documents as supporting

evidence. After conducting a hearing, the trial court signed an order granting summary

judgment in favor of Gomez without specifying the grounds. This appeal ensued.

II. GOVERNMENTAL IMMUNITY

By their first issue, the Guillens complain that the School District was improperly

dismissed from the case.

A. Applicable Law & Standard of Review

Subject matter jurisdiction is essential to a court’s authority to decide a case. In re

Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (orig. proceeding) (per curiam) (citing Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial

court has subject matter jurisdiction over a plaintiff’s claim is generally a question of law

we review de novo. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016).

Sovereign immunity is a common-law doctrine that protects the State and its

agencies from lawsuits for money damages and deprives a trial court of subject matter

jurisdiction over the plaintiff’s claims. Mission Consol. Indep. Sch. Dist. v. Garcia, 253

S.W.3d 653, 655 & n.2 (Tex. 2008). Governmental immunity provides similar protection

to the political subdivisions of the State, including school districts. Travis Cent. Appraisal

Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011).

The TTCA waives immunity for certain tort claims against governmental entities,

including property damage and personal injury proximately caused by a government

employee who negligently operates or uses a motor vehicle while acting within the scope

5 of their employment. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). The TTCA also

waives immunity for “personal injury or death so caused by the condition or use of tangible

personal or real property if the governmental unit would, were it a private person, be liable

to the claimant according to Texas law.” Id. § 101.021(2). School districts, however, are

excluded from the TTCA’s waiver of immunity “[e]xcept as to motor vehicles.” Id.

§ 101.051. In other words, the TTCA “provides a more limited waiver of immunity for

school districts.” El Paso Indep. Sch. Dist. v. De La Rosa, 656 S.W.3d 586, 588 (Tex.

App.—El Paso 2022, no pet.).

It is the plaintiff’s initial burden to plead facts that affirmatively demonstrate the trial

court’s subject matter jurisdiction, and we review this question as a matter of law. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the

pleadings liberally and look to the plaintiff’s intent. Id. If the pleadings are deficient but do

not demonstrate an incurable defect, then the issue is one of pleading sufficiency, and

the plaintiff should be afforded the opportunity to amend their pleadings. Id. at 226–27.

Conversely, if it becomes clear that the plaintiff cannot allege facts sufficient to

demonstrate a viable waiver of immunity, then the suit should simply be dismissed. Tex.

A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

A governmental defendant may challenge the existence of jurisdictional facts and

support its argument with evidence. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d

755, 770 (Tex. 2018). In such instances, the analysis “mirrors that of a traditional

summary judgment.” Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021)

(quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)).

6 When a governmental entity establishes the absence of a jurisdictional fact, the burden

shifts to the plaintiff to raise a genuine issue of material fact for the jury to resolve;

otherwise, the trial court should rule on the jurisdictional question as a matter of law.

Miranda, 133 S.W.3d at 228. “[I]n evaluating the parties’ evidence, we take as true all

evidence favorable to the nonmovant and indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor.” City of San Antonio v. Maspero, 640 S.W.3d 523,

528–29 (Tex. 2022) (citing Miranda, 133 S.W.3d at 228).

B. Analysis

It is undisputed that Gomez was not a School District employee. Consequently,

the only potentially viable theory of tort liability against the School District—one based on

the negligent operation or use of a motor vehicle by a district employee—cannot be

established through Gomez’s conduct. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.021(1), 101.051; Tarkington Indep. Sch. Dist. v. Aiken, 67 S.W.3d 319, 325 (Tex.

App.—Beaumont 2002, no pet.) (finding school district immune because “there is no

evidence in the record that a school district employee was operating or using the vehicle

and no evidence that the school district owned the vehicle”); Heyer v. N. E. Indep. Sch.

Dist., 730 S.W.2d 130, 132 (Tex. App.—San Antonio 1987, writ ref’d n.r.e.) (affirming

summary judgment for a school district on the question of immunity because “[t]he facts

before [the court] do not indicate that a school district vehicle was at all involved in the

accident, that a school employee was operating any vehicle connected with the accident,

or that there was any causal connection between the injuries and the operation or use of

any vehicle owned by the district or operated by an agent of the district”). Additionally,

7 even if Gomez had been a district employee, the Guillens have consistently maintained

in their pleadings that Gomez “purposefully caused” the accident, and the TTCA does not

waive immunity for intentional torts committed by government employees. See id.

§ 101.057(1) (“This chapter does not apply to a claim . . . arising out of assault, battery,

false imprisonment, or any other intentional tort . . . .”).

With respect to Tamez’s alleged failure to manage the flow of traffic in the parking

lot, “allegations of negligence against the School District related to the control and

supervision of the parking lot, students, and the traffic . . . do not amount to acts or

omissions arising from the operation or use of a motor vehicle contemplated by the

[TTCA].” Heyer, 730 S.W.2d at 132; see Luna v. Harlingen Consol. Indep. Sch. Dist., 821

S.W.2d 442, 444–45 (Tex. App.—Corpus Christi–Edinburg 1991, writ denied) (finding

school district immune from allegations that poor planning and layout of a bus stop

proximately caused injuries to children who were struck by a motorist while waiting for the

bus); Jackson v. City of Corpus Christi, 484 S.W.2d 806, 810 (Tex. App.—Corpus Christi–

Edinburg 1972, writ ref’d n.r.e.) (op. on reh’g) (holding that allegations involving

“negligence in the control of traffic” did not constitute operation or use of a motor vehicle

under the TTCA). Likewise, any argument that the School District’s decision to alter the

flow of traffic created a premises defect is fatally defective because the School District is

immune from premises liability claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.051;

Foster v. Denton Indep. Sch. Dist., 73 S.W.3d 454, 461 (Tex. App.—Fort Worth 2002, no

pet.) (explaining that “the only exception to a school district’s sovereign immunity is when

the claimed injury arises from the operation or use of a motor vehicle”); De La Rosa, 656

8 S.W.3d at 588 (finding school district immune from premises defect claim because the

“pleadings do not allege that the personal injury was caused by the use or operation of

[a] motor vehicle”). Finally, for the same reasons discussed above, Enrique’s allegation

that Tamez intentionally filed a false police report against him is not actionable against

the School District. 3 See id. §§ 101.051, 101.057(1).

In sum, the School District’s immunity is broader under the TTCA than other

governmental entities, and the Guillens have failed to demonstrate that their claims fall

within the School District’s narrow waiver of immunity. Accordingly, the trial court did not

err by granting the School District’s plea to the jurisdiction or by denying the Guillens’

motion to rejoin the School District. The Guillens’ first issue is overruled.

III. DISCOVERY COMPLAINTS

The Guillens allege that “[t]he trial courts conspired with numerous public servants

to deny . . . [them] . . . their civil right to due process.” This alleged conspiracy included a

court reporter and a deputy district clerk. According to the Guillens, both trial courts

“abated all request[s] for production and [s]ubpoenas,” and this frustrated their attempts

to conduct discovery and obtain the evidence necessary to support their claims. They

complain about their attempts to obtain the following evidence: (1) a copy of the

surveillance video from the School District, an effort that began prior to litigation and

continued during the discovery process; and (2) photographs of the front of Enrique’s

vehicle that he allegedly submitted to Allstate as part of the claims process. The Guillens

3 We note that the result would have been the same if Enrique had sued Tamez instead of the

School District on this claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Rivera v. Garcia, 589 S.W.3d 242, 249 (Tex. App.—San Antonio 2019, no pet.) (dismissing suit against deputies who allegedly filed a false report while acting within the scope of their employment). 9 believed that this evidence would prove that Gomez caused the accident and that Tamez

lied on the crash report.

Gomez responds that both trial courts correctly applied the rules of procedure but

the Guillens simply “failed to understand the proper method for obtaining the documents

and other items that they were interested in.” In any event, Gomez points out that the

Guillens were provided with a copy of the surveillance video and all photographs in

Allstate’s possession prior to Gomez filing his motion for summary judgment.

While a party has the right to represent themselves in court, they are held to the

same standard as licensed attorneys when doing so. Mansfield State Bank v. Cohn, 573

S.W.2d 181, 184–85 (Tex. 1978). This includes complying with the rules of procedure.

Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam). Holding pro se litigants

to a lesser standard would give them an unfair advantage over litigants represented by

counsel. Mansfield State Bank, 573 S.W.2d at 185.

The Guillens point to two hearings to support their claim: a status hearing

conducted by the first trial court on March 12, 2020, and a motion-to-quash hearing

conducted by the second trial court on August 2, 2022. During the first hearing, Enrique

complained that he had not received all photographs he submitted to Allstate while using

its application to document the damage to his vehicle. According to Enrique, he was

required to submit a 360-degree view of his vehicle, but the photographs provided by

Gomez’s counsel did not include the front view of his vehicle. Gomez’s counsel

represented to the trial court that he had already produced all photographs in Allstate’s

possession and brought a second set of copies and tendered them to Enrique in open

10 court. The trial court took counsel at his word and explained to Enrique that he could not

compel Gomez to produce something that did not exist. The court also reminded Gomez’s

counsel of his ongoing obligation to produce responsive discovery if the complained-of

photos should surface.

During the same hearing, Enrique also complained about his inability to obtain a

copy of the surveillance video from the School District, which was no longer a party to the

case. The School District had previously resisted production of the security footage,

arguing it was protected by the Family Education Rights to Privacy Act because “student

images are shown on the video.” The trial court suggested to Gomez’s counsel that his

client may also be interested in the video, and that if counsel were to obtain a copy

through discovery, he should provide a copy to Enrique. It is undisputed that Gomez’s

counsel later subpoenaed the security footage from the School District and provided a

copy to Enrique.

However, Enrique believed that the video was incomplete and served the School

District with a subpoena to produce additional security footage. The School District filed

a motion to quash the subpoena for failure to state a time and place to produce the video

for inspection. See TEX. R. CIV. P. 176.1(e), 176.2(b). The second trial court heard the

matter, agreed that the subpoena was facially defective, and granted the motion. Enrique

then asked the trial court, “What can I do?” The trial court responded (correctly) that it

could not give him legal advice but noted that he should be able to correct the deficiencies

in the subpoena if he was paying attention during the hearing. See Brown v. State, 122

S.W.3d 794, 797 (Tex. Crim. App. 2003) (observing that “[i]n the Texas adversarial

11 system, the judge is a neutral arbiter between the advocates”); see also W.D. v. R.D., No.

02-18-00328-CV, 2019 WL 2635563, at *6 (Tex. App.—Fort Worth June 27, 2019, no

pet.) (mem. op.) (explaining that a trial court should not “instruct the pro se litigant how to

navigate the evidentiary rules” because doing so “would impermissibly transform a trial

court from a neutral arbiter into an advocate for the pro se litigant”). The Guillens have

not pointed to anything in the record indicating that they attempted to correct the

deficiencies and properly subpoena the School District.

Having reviewed the record before us, we find nothing to support the Guillens’

accusation that both trial courts “abated all request[s] for production and [s]ubpoenas”

and failed to “enforce” the Texas Rules of Civil Procedure. To the contrary, the record

reflects that the parties exchanged discovery and that both trial courts faithfully applied

the rules of procedure while holding the Guillens to the same standard of exactness as

licensed attorneys. See Wheeler, 157 S.W.3d at 444; Mansfield State Bank, 573 S.W.2d

at 185. The Guillens’ second issue is overruled.

IV. SUMMARY JUDGMENT

By their final issue, the Guillens complain that summary judgment was improperly

granted because they raised a material issue of fact on each challenged element of their

claims.

A. Standard of Review & Applicable Law

We review summary judgments de novo. Eagle Oil & Gas Co. v. TRO-X, L.P., 619

S.W.3d 699, 705 (Tex. 2021). We take as true all evidence favorable to the nonmovant

and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

12 Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020). A summary judgment

motion may be brought on traditional or no-evidence grounds. See TEX. R. CIV. P.166a.

If a party moves for summary judgment on both no-evidence and traditional

grounds, as Gomez did here, we first consider the no-evidence motion. See Lightning Oil

Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). “If the non-movant

fails to overcome its no-evidence burden on any claim, we need not address the traditional

motion to the extent it addresses the same claim.” Id.

A party may move for summary judgment “on the ground that there is no evidence

of one or more essential elements of a claim or defense on which an adverse party would

have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). “A no-evidence motion for

summary judgment immediately shifts the burden to the nonmovant.” Energen Res. Corp.

v. Wallace, 642 S.W.3d 502, 514 (Tex. 2022). “To defeat a no-evidence motion, the non-

movant must produce evidence raising a genuine issue of material fact as to the

challenged elements.” First United Pentecostal Church of Beaumont v. Parker, 514

S.W.3d 214, 220 (Tex. 2017). “Material facts are those facts which affect the outcome of

the suit under the governing law.” Smith v. Mosbacker, 94 S.W.3d 292, 294 (Tex. App.—

Corpus Christi–Edinburg 2002, no pet.) (cleaned up).

“The elements for civil assault mirror those required for criminal assault.” Umana

v. Kroger Tex., L.P., 239 S.W.3d 434, 436 (Tex. App.—Dallas 2007, no pet.) (citing

Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App.—Houston [14th Dist.] 2005, pet.

denied)). There are two types of assault that involve contact: infliction of bodily injury and

offensive physical contact. See TEX. PEN. CODE ANN. § 22.01(a). Because Victoria’s

13 alleged injuries are mental rather than physical, we assume her claim is the latter kind.

See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) (“Damages

for mental suffering are recoverable without the necessity for showing actual physical

injury in a case of willful battery because the basis of that action is the unpermitted and

intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s

body.”). Thus, as relevant here, a person commits an assault if he intentionally causes

physical contact with another when the person knows or should reasonably believe that

the other will regard the contact as offensive or provocative. See TEX. PEN. CODE ANN.

§ 22.01(a)(3) (including “knowing” as a lesser culpable mental state, which was not

alleged by the Guillens). A person acts intentionally when it is his conscious objective or

desire to engage in the conduct or cause the result. Id. § 6.03(a). Intent may be inferred

from circumstantial evidence such as acts, words, and the conduct of the defendant.

Adams v. State, 180 S.W.3d 386, 414 (Tex. App.—Corpus Christi–Edinburg 2005, no

pet.) (citing Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)). Finally, a

plaintiff may prove assault through indirect contact, such as crashing one vehicle into

another. Young v. City of Dimmitt, 776 S.W.2d 671, 672–73 (Tex. App.—Amarillo 1989,

writ denied).

B. The Summary Judgment Record

Before turning to the summary judgment record, we note what is missing from the

record. Throughout the long and winding road of this litigation, 4 much ink was spilled over

the production of the security video and what it allegedly proves. Yet, remarkably, the

4 The District Clerk’s “Case Summary” is twenty-one pages long.

14 video is not part of the summary judgment record. Although the motion for summary

judgment includes several still images from the video, Gomez apparently failed to file a

copy of the video with the district clerk. Instead, according to Gomez’s brief, “the video

was provided to the trial court” during the summary judgment hearing and the video

“speaks for itself.” Of course, summary-judgment practice generally requires the moving

party to file and serve supporting evidence “at least twenty-one days before the time

specified for hearing.” See TEX. R. CIV. P. 166a(c) (providing an exception upon “leave of

court, with notice to opposing counsel”); Save Our Springs All., Inc. v. Austin Indep. Sch.

Dist., 973 S.W.2d 378, 381 (Tex. App.—Austin 1998, no pet.) (“The trial court did not err

in refusing to admit evidence tendered at the summary-judgment hearing.”). Further, it is

not clear whether the video was moved into evidence because neither party requested

the court reporter to prepare a transcript of the hearing, including any exhibits that may

have been admitted. See TEX. R. APP. P. 34.6(b)(1), (c)(2). Perhaps the parties did not

request a transcript because none exists. See FieldTurf USA, Inc. v. Pleasant Grove

Indep. Sch. Dist., 642 S.W.3d 829, 838 (Tex. 2022) (“Because issues, grounds, and

testimony in support of and in opposition to summary judgment may not be presented

orally, a reporter’s record of such a hearing is generally unnecessary for appellate

purposes.”). Whatever the reason, the video is not before us.

The absence of a transcript is also puzzling because Gomez claims in his brief that

the trial court granted his “oral motion to strike” Guillens’ evidence in toto, a ruling that is

not reflected in the order granting summary judgment. Id. at 830–31 (holding that “a trial

court’s on-the-record, oral ruling sustaining an objection to summary judgment evidence

15 suffices to strike the evidence from the summary judgment record when the ruling is not

reduced to a written order”). This alleged “oral” motion to strike does not comport with

summary-judgment practice. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 677 (Tex. 1979) (holding that “both the reasons for the summary judgment and the

objections to it must be in writing and before the trial judge at the hearing”). Nevertheless,

if this ruling did occur, it has not been challenged by the Guillens on appeal, a potential

waiver that would have set our analysis on a different path. See Bolanos v. Purple Goat,

LLC, 649 S.W.3d 753, 763 (Tex. App.—El Paso 2022, no pet.) (“Because Bolanos fails

to address the evidentiary challenges to the excluded evidence, she is effectively left with

nothing in the record to respond to the no-evidence motion for summary judgment. Given

that record, we are compelled to affirm the order granting of the Rule 166a(i) motion.”).

However, we can only base our opinion on the record before us—one that does not

include a video of the incident or any ruling excluding the Guillens’ summary judgment

evidence.

C. Analysis

Nevertheless, we agree with Gomez that there is no competent summary judgment

evidence in the record that raises a genuine issue of material fact as to whether he

committed an intentional tort of any kind. See Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex.

App.—Houston [1st Dist.] 1998, no pet.) (“Formal defects may be waived by failure to

object, and if waived, the evidence is considered. Substantive defects are never waived

because the evidence is incompetent and cannot be considered under any

circumstances.”). It is undisputed that the School District altered the flow of traffic in the

16 parking lot during dismissal so that both lanes of traffic were traveling in the same

direction. In an attempt to prove how the accident occurred, the Guillens first submitted

this illustrative diagram, which shows the two vehicles driving side-by-side in the parking

lot before Gomez’s vehicle attempts to merge into the Guillens’ lane of traffic near the

parking lot exit:

The diagram was not attached to an affidavit or any other testimony that provides context

or further detail about how the incident occurred. See TEX. R. CIV. P. 166a(c); see also

Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 827 (Tex. 2022) (per curiam) (“As a

general proposition, pleadings are not competent summary-judgment evidence, even if

they are sworn or verified.” (citing Regency Field Servs., LLC v. Swift Energy Operating,

LLC, 622 S.W.3d 807, 818 (Tex. 2021))). It is also unclear who created the diagram.

Assuming that it was created by Victoria or Enrique, this visual aid is effectively a

completely unauthenticated statement of what allegedly occurred, and such statements

are not competent summary judgment evidence. See Trimble v. Fed. Nat’l Mortgage

17 Ass’n, 516 S.W.3d 24, 32 n.3 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (“A

completely unauthenticated document constitutes no evidence for purposes of a motion

for summary judgment or opposition to such a motion.”); Moron v. Heredia, 133 S.W.3d

668, 671 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (“The only document

produced by appellants in response to appellee’s motion for summary judgment was

McAllister’s report. This document was neither verified nor accompanied by an affidavit.

As such, it did not constitute admissible evidence.”); Blanche v. First Nationwide

Mortgage Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.) (holding a

complete absence of authentication is a defect of substance that is not waived by a party’s

failure to object and may be urged for the first time on appeal, and distinguishing a

complete absence of authentication from a situation in which a party attempts to

authenticate but does so improperly, which is a defect of form); see also Bayou City Fish

Co. v. S. Tex. Shrimp Processors, Inc., No. 13–06–00438–CV, 2007 WL 4112003, at *3

(Tex. App.—Corpus Christi–Edinburg Nov. 20, 2007, no pet.) (mem. op.) (“If, therefore, a

statement is unauthenticated, unsworn, and unaccompanied by an affidavit, it is not

competent summary judgment evidence.”).

Even if the failure to authenticate was a formal rather than substantive defect, the

diagram is still not competent evidence of intentional assault because it raises two equally

plausible inferences: (1) Gomez was aware that the Guillens were next to him when he

merged into their lane, suggesting the contact may have been intentional; or (2) Gomez,

for any number of reasons, failed to maintain a proper lookout, and the contact was merely

inadvertent. See Arcides v. Rojas, 677 S.W.3d 154, 161 (Tex. App.—El Paso 2023, no

18 pet.) (“The duty to maintain a proper lookout while driving encompasses the duty to

observe, in a careful and intelligent manner, traffic and the general circumstances in the

vicinity.” (citing Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex. App.—Tyler 1992,

writ denied))). “When the circumstances are equally consistent with either of two facts,

neither fact may be inferred.” United Rentals N. Am., Inc. v. Evans, 668 S.W.3d 627, 642

(Tex. 2023) (cleaned up) (quoting City of Keller, 168 S.W.3d 802, 813 (Tex. 2005)). Stated

differently, even if considered, this diagram alone is no evidence that Gomez

“deliberately” caused the collision. See id.

The Guillens also allege in their live pleading that, after the initial contact, Gomez

“continued to ram his vehicle into [their] vehicle[,] trying to push it towards the parked car

area.” The above diagram does not support this allegation and is thus insufficient to raise

a genuine issue of material fact about any subsequent assault allegedly committed by

Gomez.

The only other evidence the Guillens submitted to demonstrate how the incident

occurred was unauthenticated still images taken from the video. Normally, “we ignore

evidence attached to a combined summary-judgment motion and offered in support of

traditional-summary-judgment grounds, unless the non-movant directed the trial court to

that evidence in the response to the movant’s no-evidence motion.” Stettner v. Lewis &

Maese Auction, LLC, 611 S.W.3d 102, 109 (Tex. App.—Houston [14th Dist.] 2020, no

pet.). In this case, because both parties submitted still images from the same video, we

will consider the Guillens’ reliance on the unauthenticated images attached to their

response as an invitation for the trial court to also consider the School District’s

19 authenticated images from the same video. See id. Moreover, we find it unnecessary to

determine whether the Guillens’ unauthenticated images were admissible under these

circumstances because both sets of images depict the same sequence of events.

The first few images establish the following facts: two lanes of traffic were driving

in the same direction through the parking lot before merging into a single lane to exit;

Enrique, who was traveling in the right lane, passed a stopped vehicle on the righthand

side and merged back into the right lane; vehicles in the right lane were merging into the

left lane to exit; Gomez was driving in the left lane; and the two vehicles drove side-by-

side for a short distance, as depicted in this image: 5

The final image, depicted below, shows the two vehicles side-by-side after they made

contact, and Gomez’s car, which is slightly in front of Enrique’s truck, remains in the

5 We have elected to use the images provided by the School District because they are of a superior

quality. The School District provided the labels and markers identifying the vehicles. 20 established lane of traffic:

Therefore, the images do not support the Guillens’ theory of liability. Rather, the images

are consistent with Tamez’s report faulting Enrique for the collision. We conclude that the

Guillens failed to raise a genuine issue of material fact as to whether Gomez committed

any type of intentional tort against them. See First United Pentecostal Church of

Beaumont, 514 S.W.3d at 220. Accordingly, their third issue is overruled.

V. CONCLUSION

We affirm the trial court’s judgment.

JENNY CRON Justice

Delivered and filed on the 17th day of April, 2025.