Opinion issued August 6, 2026.
In the
Court of Appeals
for the
First District of Texas
NO. 01-23-00398-CV
CLAY BAILEY, Appellant
v.
CHANDLER CARRENS AND KAREN CARRENS, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2021-57097
MEMORANDUM OPINION
Appellant Clay Bailey appeals the no-evidence summary judgment granted
by the trial court in favor of appellees Chandler Carrens and Karen Carrens. Bailey
contends that the trial court improperly granted summary judgment against him on
a negligence per se cause of action not addressed in the Carrenses’ motion. Because negligence per se is not a separate cause of action, but instead a method of
proving the breach-of-duty element of a common-law negligence cause of action,
we conclude that the Carrenses no-evidence motion for summary judgment
encompassed Bailey’s negligence per se claim. We affirm.
Background
Bailey filed suit against the Carrenses on September 7, 2021. In his petition,
Bailey argued that the Carrenses’ negligence and negligence per se caused a car
accident in which Bailey was rear-ended and injured by the Carrenses.
On January 18, 2023, the Carrenses filed a no-evidence motion for summary
judgment under what was then rule 166a(i) of the Texas Rules of Civil Procedure
(the Summary Judgment Motion).1 The trial court granted the Summary Judgment
Motion on February 13, 2023 (the Summary Judgment Order).2 Thirty days later,
on March 15, 2023, new counsel for Bailey filed a motion for reconsideration of
the Summary Judgment Order, arguing in part that the Summary Judgment Motion
had challenged only Bailey’s negligence claim and not his claim of negligence per
se. In their April 20, 2023 response, the Carrenses argued in part that their motion
1
References herein to rule 166a of the Texas Rules of Civil Procedure are to the
version of the rule in effect as of the trial court’s summary judgment. 2
Although the trial court’s February 13, 2023 order did not state with unmistakable
clarity or otherwise show that it was intended to be a final judgment as to all
claims and parties, the parties treated it as such. And the trial court has since
clarified that its order was intended to be a final judgment disposing of all claims
and parties.
2
had referenced “claims of negligence,” which included negligence, negligence per
se, and negligent entrustment. On April 25, 2023, the trial court signed an order
that the parties agree had the effect of denying Bailey’s motion for reconsideration.
On May 25, 2023, Bailey filed a notice of appeal from “the Final Order in
this case.” Bailey filed his notice of appeal 101 days after the trial court’s
Summary Judgment Order, and 30 days after the trial court’s April 25, 2023 denial
of his motion for reconsideration.
Bailey argues on appeal that the trial court improperly granted summary
judgment against him on a cause of action, i.e., negligence per se, not addressed in
the Carrenses’ Summary Judgment Motion. In response, the Carrenses argue that:
(1) this Court does not have subject matter jurisdiction because Bailey’s notice of
appeal was not timely; and (2) the trial court properly dismissed all of Bailey’s
claims, including his claim of negligence per se. In his reply, Bailey argued in part
that he had timely filed his notice of appeal within 30 days of the trial court’s April
25, 2023 denial of his motion for reconsideration, which was “the last ruling from
the Trial Court.”
Timeliness of the Appeal
Absent a timely notice of appeal, this Court is without jurisdiction to
consider this appeal. Mitschke v. Borromeo, 645 S.W.3d 251, 260-61 (Tex. 2022)
(stating “absence of a timely notice of appeal prevents the appellate court from
3
ever exercising jurisdiction” and, “[w]ithout jurisdiction, the court of appeals is
powerless to entertain an appeal”). Under rule 26.1 of the Texas Rules of Appellate
Procedure, in a civil case, a “notice of appeal must be filed within 30 days after the
judgment is signed.” Accordingly, to appeal the trial court’s February 13, 2023
Summary Judgment Order, Bailey was required to file a notice of appeal on or
before March 15, 2023. Bailey’s May 25, 2023 notice of appeal therefore appears
to be untimely.
However, the deadline for filing a notice of appeal is extended to “90 days
after the judgment is signed if any party timely files: (1) a motion for new trial;
[or] (2) a motion to modify the judgment . . . .” TEX. R. APP. P. 26.1(a). The
appellate record reflects that Bailey filed a timely motion for reconsideration of the
trial court’s order granting the Carrenses’ no-evidence motion for summary
judgment, which was the equivalent of a motion for new trial and thus had the
effect of extending the appellate deadline to 90 days. See Harper v. Walker, No.
01-23-00928-CV, 2025 WL 1942951, at *1 (Tex. App.—Houston [1st Dist.] July
15, 2025, no pet.) (mem. op.) (“If a party timely files a motion for reconsideration,
then the notice of appeal is due within 90 days after the judgment is signed.”);
Adams v. Ross, No. 01-15-00315-CV, 2016 WL 4128335, at *2 (Tex. App.—
Houston [1st Dist.] Aug. 2, 2016, no pet.) (mem. op.) (“We treat a motion for
reconsideration that seeks modification or reversal of a judgment as a motion for
4
new trial.”). Accordingly, Bailey’s deadline for filing a notice of appeal was
extended to May 15, 2023. Under the extended deadline, Bailey’s May 25, 2023
notice of appeal remains untimely filed.
In their brief, the Carrenses argued that the appeal should be dismissed
because Bailey failed to timely file a notice of appeal and therefore did not invoke
this Court’s appellate jurisdiction. In his reply brief, Bailey argued that his May 25,
2023 notice of appeal was timely because it was filed within 30 days of the trial
court’s April 25, 2023 order denying his motion for reconsideration. However, the
denial of a motion for reconsideration does not extend the deadline to file a notice
of appeal to 30 days after that order. See Morris v. Wells Fargo Bank, N.A., No.
01-19-00610-CV, 2019 WL 4677365, at *1-2 (Tex. App.—Houston [1st Dist.]
Sept. 26, 2019, no pet.) (mem. op.) (noting that “an order denying a motion for
reconsideration or motion for new trial is not independently appealable” and “the
time for filing a notice of appeal runs from the signing of the final judgment, not
the subsequent denial of a motion for new trial”).
However, rule 26.3 of the Texas Rules of Appellate Procedure allows for an
extension of the deadline to file a notice of appeal if, within 15 days after the
deadline for filing a notice of appeal, an appellant files a notice of appeal in the
trial court and a motion for extension of time to file a notice of appeal in the
appellate court. See TEX. R. APP. P. 10.5(b), 26.3. Taking this extension into
5
account, Bailey was required to file a notice of appeal in the trial court, and a
motion for extension of time to file a notice of appeal in this Court, no later than
May 30, 2023.
Bailey’s May 25, 2023 notice of appeal was filed within this extended
deadline. This Court’s records do not indicate that Bailey filed a motion to extend
the deadline for filing a notice of appeal. However, the Texas Supreme Court has
concluded that a motion for extension of time to file a notice of appeal is implied
when an appellant, acting in good faith, files a notice of appeal beyond the
deadline created by rule 26.1 of the Texas Rules of Appellate Procedure but within
the 15-day extended period provided by rule 26.3 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 26.1, 26.3; Vergburgt v. Dorner, 959 S.W.2d 615,
617-18 (Tex. 1997); Griffin v. Galveston Cnty., No. 01-23-00377-CV, 2023 WL
5353372, at *1 (Tex. App.—Houston [1st Dist.] Aug. 22, 2023, pet. denied) (mem.
op.).
Because Bailey’s notice of appeal was filed within the 15-day extended
period, a motion for extension of time is implied. But Bailey must still offer a
reasonable explanation for his failure to timely file a notice of appeal. TEX. R. APP.
P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998);
In re A.J.U., No. 01-16-00371-CV, 2016 WL 3946925, at *1 (Tex. App.—Houston
[1st Dist.] July 19, 2016, no pet.) (mem. op.). In this context, a reasonable
6
explanation includes any plausible statement of circumstances indicating that
Bailey’s failure was not deliberate or intentional, but was the result of
inadvertence, mistake, or mischance. In re S.V., 697 S.W.3d 659, 661 (Tex. 2024)
(citing Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977) (applying rule
26.3’s predecessor)). For example, a mistake regarding the law is a reasonable
explanation for the purpose of deciding whether to grant an implied motion for
extension. Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989); Gantt
v. Harris Cnty., 674 S.W.3d 553, 558 (Tex. App.—Houston [1st Dist.] 2023, no
pet.).
As noted above, after the Carrenses argued that Bailey’s notice of appeal
was untimely, Bailey, in his reply brief, argued incorrectly that his notice of appeal
was timely because he “had thirty (30) days from the date of the last ruling from
the [t]rial [c]ourt to file” his notice of appeal. Bailey argued in the alternative that
an extension of the deadline to file his notice of appeal was warranted due to his
counsel’s trial and appellate dockets. Bailey thus provided plausible statements of
circumstances indicating that his failure to timely file his notice of appeal was not
deliberate or intentional, but was the result of inadvertence, mistake, or mischance.
Treating the notice of appeal as an implied motion for extension of time to file a
notice of appeal, we grant the motion. See TEX. R. APP. P. 26.3.
7
Summary Judgment Order
Having determined that the notice of appeal was timely filed, and thus that
we have jurisdiction to reach the issue, we turn to Bailey’s claim that the trial court
improperly granted summary judgment against him on his claim of negligence per
se because that cause of action is not addressed in the Summary Judgment Motion.
Specifically, Bailey argues that the Carrenses’ Summary Judgment Motion “only
addressed [his] cause of action for negligence [and] failed to address[] [his] cause
of action for negligence per se.”
We review de novo a trial court’s grant of summary judgment. First
Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712 S.W.3d 75, 84 (Tex.
2025). After an adequate time for discovery, a party may move for no-evidence
summary judgment by identifying elements of a claim or defense for which there is
no evidence. TEX. R. CIV. P. 166a(i). The trial court must grant the motion unless
the nonmoving party produces summary judgment evidence raising a genuine issue
of material fact. Id. “A no-evidence motion provides adequate notice when the
motion describes the challenged elements in sufficient detail to identify them.”
State v. $3,774.28 in U.S. Currency, 713 S.W.3d 381, 388 (Tex. 2025).
In his petition, Bailey asserted claims for negligence and negligence per se
and sought damages over $200,000 but not more than $1,000,000. “The elements
of a common-law negligence claim are (1) a legal duty; (2) a breach of that duty;
8
and (3) damages proximately resulting from that breach.” Elephant Ins. Co. v.
Kenyon, 644 S.W.3d 137, 144 (Tex. 2022). Negligence per se is a common-law
claim applying when a trial court determines that the violation of a statute is
negligence as a matter of law. See Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex.
2001). To establish negligence per se, a plaintiff must prove that (1) the
defendant’s act or omission violates a statute or ordinance, (2) the injured person is
within the class of persons that the statute or ordinance was designed to protect,
and (3) the defendant’s act or omission proximately caused the injury.3 See Metro.
Transit Auth. of Harris Cnty. v. Trans-Global Sols., Inc., No. 01-22-00434-CV,
2023 WL 3742349, at *8 (Tex. App.—Houston [1st Dist.] June 1, 2023, pet.
denied) (mem. op.).
Negligence per se is not a separate cause of action that exists independently
of a common-law negligence cause of action. Thomas v. Uzoka, 290 S.W.3d 437,
445 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Rather, negligence per
se is merely one method of proving a breach of duty, a requisite element of any
negligence cause of action. Id.
In their Summary Judgment Motion, the Carrenses stated that Bailey has
“pursued claims of negligence and damages against” them. The Carrenses argued
3
In his petition, Bailey asserted that the Carrenses were liable for negligence per se
because they violated section 545.351 of the Texas Transportation Code. See TEX.
TRANSP. CODE § 545.351 (titled “Maximum Speed Requirement”).
9
that, to “prevail on a negligence cause of action, a plaintiff must establish that the
defendant owed him a duty, the defendant breached that duty, and the breach
proximately caused his damages.” The Carrenses argued further that:
Plaintiff has produced no evidence of injury or
damages. Plaintiff has not produced medical bills,
medical records, photographs or any other evidence to
even show an accident between Plaintiff and Defendant
[sic] occurred.
Accordingly, essential elements necessary to prove
the Plaintiff’s claim against this Defendant [sic] are
unsupported by any evidence, and the Plaintiff’s claim of
negligent entrustment against this defendant must fail as
a matter of law.
The Carrenses’ reference to a negligent entrustment claim here and in its
response to Bailey’s motion for reconsideration appear to have been mistakes by
the Carrenses’ counsel. In his petition, Bailey alleged that one of the Carrenses was
driving the vehicle that rear-ended him. He made no express reference to a
negligent entrustment claim.4 Nor do the parties make any express reference to a
negligent entrustment claim in their briefs on appeal. The trial court nevertheless
4
To prevail on a negligent entrustment claim, a plaintiff must prove (1) the
entrustment of a vehicle by the owner, (2) to an unlicensed, incompetent, or
reckless driver, (3) that the owner knew or should have known to be unlicensed,
incompetent, or reckless, (4) that the driver was negligent on the occasion in
question, and (5) the driver’s negligence proximately caused the accident and
plaintiff’s injuries. Brown v. McClure, No. 01-19-00504-CV, 2021 WL 6119990,
at *7 (Tex. App.—Houston [1st Dist.] Dec. 28, 2021, no pet.) (citing Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007)).
10
interpreted the Carrenses’ motion as “assert[ing] that [Bailey’s] negligence claims
fail as a matter of law because there was ‘no evidence of injury or damages’ as
required to support a negligence claim under Texas law,” and intended in granting
the motion to grant a final judgment as to all claims and parties.
Our interpretation of the scope of the Summary Judgment Motion matches
that of the trial court, including that the reference to an unpled claim of negligent
entrustment was a mistake by the Carrenses’ counsel. The Carrenses noted
Bailey’s “claims of negligence and damages,” listed the essential elements of a
negligence cause of action, and argued that Bailey had “produced no evidence of
injury or damages.” Because negligence per se is not a separate cause of action, but
instead a method of proving the breach-of-duty element of a common-law
negligence cause of action, see Thomas 290 S.W.3d at 445, we reject Bailey’s
argument that the Summary Judgment Motion addressed only his negligence claim
and not his cause of action for negligence per se. Moreover, the Carrenses
described the challenged element of Bailey’s negligence claims—the damages
element—in sufficient detail to identify it. See $3,774.28, 713 S.W.3d at 388.
We overrule Bailey’s only point of error.
Conclusion
We affirm the trial court’s judgment.
11
Amparo “Amy” Guerra
Justice
Panel consists of Justices Guerra, Gunn, and Morgan.
12