Opinion
No. 01-08-00831-CV
Opinion issued December 10, 2009.
On Appeal from the 133rd District Court Harris County, Texas, Trial Court Cause No. 2006-01593.
Panel consists of Justices KEYES, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellant, Marwa Imkie, appeals from a summary judgment rendered by the trial court in favor of appellee, The Methodist Hospital (hereinafter "Methodist"). In two issues, Imkie contends the trial court erred by granting the no evidence motion for summary judgment filed by Methodist, and erred by denying her motion for a new trial. We conclude that the trial court properly granted the motion for summary judgment, and did not abuse its discretion by denying the motion for new trial. We affirm the ruling of the trial court.
Background
In 2006, Imkie slipped and fell outside Methodist's pathology lab while working as a resident physician for the Baylor College of Medicine. Imkie alleges that she slipped due to a premises condition, either a buildup of paraffin residue or, alternatively, excessive floor wax and that Methodist was aware of this condition.
In 2006, Imkie filed a premises liability claim, asserting that Methodist "owned, occupied, maintained, and controlled the premises" and, as such, Methodist owed Imkie, its invitee, a duty to exercise reasonable care to protect her from dangerous conditions on its premises that were known to it or reasonably discoverable.
In December 2007, the Lanier Law Firm, Imkie's original trial counsel, notified Imkie of its intention to withdraw as her counsel. On April 16, 2008, Lanier filed a motion to withdraw as her counsel. The trial court granted the motion to withdraw on May 5, 2008.
Shortly after Lanier withdrew from the case, Methodist filed a no-evidence motion for summary judgment on grounds that Imkie had no evidence to prove the elements of her premises liability claim. Imkie, litigating pro se, did not file a response to the no-evidence motion but did show up at the hearing. The trial court granted summary judgment in favor of Methodist.
Imkie found new counsel, and filed a motion for new trial on the grounds that (1) she was not given sufficient opportunity to retain new counsel for the summary judgment hearing; (2) she was without counsel, so abiding by Rule 166a(i) was unfair; and (3) Methodist would not be unduly burdened by setting aside the summary judgment order because it was merely an interlocutory order. The trial court held a hearing in which testimony was taken. After the hearing, the trial court denied Imkie's motion for a new trial, stating the motion lacked merit. Imkie now appeals the grant of summary judgment and the denial of her motion for new trial.
Motion for Summary Judgment
In her first issue, Imkie argues the trial court erred by granting Methodist's no-evidence motion for summary judgment.
A. Standard of Review
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment must be granted if, after adequate time for discovery, the moving party asserts there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial, and the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. Tex. R. Civ. P. 166(a)(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
A party who files a no-evidence summary judgment motion pursuant to rule 166(a)(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged by the motion. Id. at 582; Landers v. State Farm Lloyds, 257 S.W.3d 740, 744 (Tex. App.-[1st Dist.] 2008, no pet.).
B. Timeliness of Imkie's Response
Methodist's no-evidence motion for summary judgment asserts it is entitled to summary judgment on Imkie's premises liability tort claim because:
(1) [there is no evidence] that an unreasonably dangerous condition existed on Methodist's premises at the time of Imkie's fall,
(2) [there is no evidence] Methodist had any knowledge of any unreasonably dangerous condition,
(3) [there is no evidence] that Methodist failed to take reasonable steps to reduce or eliminate any risk caused by the condition of the premises,
(4) [there is no evidence] that Methodist's acts or omissions caused Imkie's injuries in any way, and
(5) [there is no evidence] that there was any malice, extreme risk of injury, or actual subjective awareness of such risk on the part of Methodist.
Pursuant to Texas Rule of Civil Procedure 166(a)(c), Imkie had until seven days before the hearing on the motion for summary judgment to file either (1) a response to this motion or (2) a motion for leave to file the response out of time. Tex. R. Civ. P. 166(a)(c). Rule 166(a)(c) provides, in pertinent part, that, "except on leave of court, the adverse party, not later than seven days prior to the date of the hearing may file and serve opposing affidavits or other written responses." Id.
Here, Imkie failed to file a response to Methodist's motion for summary judgment. Furthermore, Imkie did not file a motion for leave to file an untimely response. The record shows Imkie received timely notice of Methodist's summary judgment motion, did not file a response, but instead chose only to appear at the summary judgment hearing.
C. Effect of No Response
Absent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i). Tex. R. Civ. P. 166(a)(i); Landers, 257 S.W.3d at 746; Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.-Corpus Christi 2001, pet. denied) ("[f]ailure to respond to a no-evidence motion is fatal"). If a nonmovant wishes to assert that, based on the evidence in the record, a fact issues exists to defeat a no-evidence motion for summary judgment, the nonmovant must timely file a response to the motion raising this issue before the trial court. Landers, 257 S.W.3d at 746 (citing Tex. R. Civ. P. 166(a)(i)).
Imkie contends she did not file a written response because she believed an oral response at the hearing would be sufficient. Rule 166a(c) states, "[n]o oral testimony shall be received at the hearing." Tex. R. Civ. P. 166a(c). Imkie impliedly contends that we should disregard Rule 166a(c), and that, due to her ignorance of the law as a pro se litigant, we should excuse her failure to file a written response to Methodist's summary judgment motion. Pro se litigants, however, are held to the same standard as licensed attorneys and must comply with applicable laws and rules of procedure. Goss v. Bobby D. Assocs., 94 S.W.3d 65, 69 (Tex. App.-Tyler 2002, no pet.). If a pro se litigant is not required to comply with the applicable rules of procedure, she would receive an unfair advantage over a litigant who is represented by counsel. Id.
Here, Methodist filed a motion that identifies the elements as to which there is no evidence, the motion is in a form that is neither conclusory nor a general no-evidence challenge, and Imkie did not file a timely response to the motion. We hold the trial court did not err in granting the no-evidence motion for summary judgment. Landers, 257 S.W.3d at 746 (holding trial court did not err in granting no-evidence motion for summary judgment in absence of timely response).
We overrule Imkie's first issue.
Motion for New Trial
In her second issue, Imkie argues the trial court abused its discretion by denying her motion for a new trial. She contends she should be granted a motion for a new trial on the grounds that she was not given sufficient opportunity to retain new counsel for the summary judgment hearing and the equitable principles of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), apply to her situation.
We review a trial court's denial of a motion for new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). The trial court abuses its discretion if it acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under an abuse of discretion standard, we view the evidence in the light most favorable to the trial court's actions. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-[1st Dist.] 1993, writ denied). When we determine whether the trial court abused its discretion, we may not substitute our judgment for that of the trial court unless its decision was so arbitrary that it exceeded the bounds of reasonableness. Clarendon Nat'l Ins. Co. v. Thompson, 199 S.W.3d 482, 494 (Tex. App.-Houston [1 Dist.] 2006, no pet.). Accordingly, we review the evidence submitted to the trial court in the light most favorable to that court's ruling, draw all legitimate inferences from the evidence, and defer to the trial court's resolution of conflicting evidence. Id.
A. Time to Retain New Counsel
The record shows that the trial court granted Imkie's original counsel's motion to withdraw as counsel on May 5, 2008. Imkie asserts, that as a result of her counsel's withdrawal, on May 28, 2008, Methodist filed the motion for no evidence summary judgment. She asserts her response was due on June 16, 2008, seven days before the hearing, giving her only "14 days" to find new counsel to respond to the motion. Imkie asserts that the trial court should have granted a new trial because she did not have enough time to locate and retain new counsel between the date of the motion for summary judgment and the date her response was due. Appellant further claims her ability to locate new counsel was hindered by prejudicial statements made by opposing counsel and due to the extent of her injuries.
Methodist, on the other hand, asserts that Imkie was aware she would need new counsel by December 2007. The record shows that on December 26, 2007, the Lanier Law Firm notified her of its desire to withdraw as her counsel. On December 28, 2007, Imkie acknowledged her counsel's notification in her own signed letter. In her brief, Imkie concedes she had notice from December 20, 2007 that her counsel intended to withdraw.
Imkie's acknowledgment letter demonstrates that Imkie had over six months, from December 28, 2007, until July 16, 2008, to find new counsel. Additionally, Imkie had a right to file a motion for continuance of the summary judgment hearing or to request permission to file a late response, but she did neither. Besides conclusory assertions regarding her injuries and statements of Methodist's counsel, Imkie has made no showing that her failure to have counsel at the hearing was not due to her own fault or negligence. See State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984) (concluding that where absence of counsel is urged as grounds for continuance, party must show that failure to be represented at trial is not due to his own fault or negligence) (citing Counts v. Counts, 358 S.W.2d 192, 200 (Tex. Civ. App.-Austin 1962, writ dism'd w.o.j.) (new trial will not will not be awarded to litigant whose counsel withdraws from case prior to trial but in time for litigant to engage services of another attorney)); Wilburn v. GE Marquette Med. Sys., 163 S.W.3d 264, 270 (Tex. App.-El Paso 2005, pet. denied) (applying holding in Crank to context of summary judgment hearing). We hold that Imkie's contention that the trial court abused its discretion in refusing her motion for new trial is without merit, as her failure to retain counsel does not constitute good cause for the trial court to grant her a new trial. Cf. Landers v. Anderson, 788 S.W.2d 940, 941-42 (Tex. App.-Fort Worth 1990, no writ) (holding no abuse of discretion in denying continuance when client voluntarily agreed to withdrawal of counsel and had almost four months to retain new counsel).
B. Craddock
Imkie contends the trial court should have granted her motion for new trial because she satisfied the elements of Craddock v. Sunshine Bus Lines. In Craddock, the Texas Supreme Court held that under equitable principles a default judgment should be set aside when the defendant establishes (1) the failure to answer was not intentional or the result of conscious indifference, but the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no undue delay or otherwise injure the plaintiff. Craddock, 133 S.W.2d at 126. Imkie asserts she meets all three prongs of the Craddock standard because she believed that her personal appearance at the hearing was a sufficient response to Methodist's no evidence summary judgment motion and that her failure to provide a written response to Methodist's motion for summary judgment was a mistake of law.
Craddock does not apply to a motion for new trial filed after a summary judgment where the non-movant failed to timely respond to the motion despite notice of the hearing and an opportunity to seek a continuance or request leave to file a late response. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002). Here, Imkie had notice of the hearing and had an opportunity to seek a continuance or request to leave to file a late response. We, therefore, hold that Craddock does not apply and that the trial court did not abuse its discretion in denying Imkie's motion for new trial. Cf. Urbanczyk v. Urbanczyk, 278 S.W.3d 829, 836-37 (Tex. App.-Amarillo 2009, no pet.) (holding Craddock's equitable standard for setting aside default judgment did not apply to will contestant's motion for new trial of summary judgment motions where contestant had sufficient notice of hearing and ample time to respond or seek continuance); Richards v. Am. Nat'l Prop. Cas. Co., 195 S.W.3d 758, 763 (Tex. App.-Beaumont 2006, no pet.) (holding unintentional failure to timely respond to summary judgment motion did not entitle appellant to new trial after trial court granted summary judgment allegedly by default; appellant had notice of hearing and opportunity to obtain leave to file late response). We overrule Imkie's second issue.
Conclusion
We affirm the judgment of the trial court.