In Gunn v. Harris Methodist Affiliated Hosps., 887 S.W.2d 248 (Tex. App.--Fort Worth 1994, writ denied), the defendant hospital filed a sworn denial claiming that it was not liable in the capacity in which it was sued and, separately, that there was a fatal defect of the parties. Id.
Contemporaneously, the hospital filed a summary judgment motion supported by summary judgment evidence asserting that it did not own or operate the premises on which the plaintiff was injured. Id.
The plaintiff failed to timely respond to the summary judgment motion. The defendant hospital did not prevail on the basis of merely filing a Rule 93(2) pleading to which the plaintiff did not respond. Rather, the hospital moved for summary judgment and established as a matter of law, by competent and undisputed evidence, lack of capacity.
The trial court granted summary judgment in favor of the hospital. Id.
The court of appeals affirmed. 887 S.W.2d at 251.