Opinion
No. 04-04-00881-CV
Delivered and Filed: July 13, 2005.
Appeal from the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-17325, Honorable Fred Shannon, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Jose Ramirez appeals a no-evidence summary judgment granted in favor of Dan Pozza in a legal malpractice lawsuit. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
A trial court "must grant" a no-evidence motion for summary judgment "unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Tex. R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436-37 (Tex.App.-Houston [14th Dist.] 1999, no pet.). After special exceptions were granted and Ramirez failed to file an amended pleading, Pozza moved for summary judgment or, in the alternative, for a dismissal of Ramirez's claims. Prior to the hearing on Pozza's motion, Ramirez filed a response which the trial court appears to have construed as an amended pleading asserting a claim that Pozza engaged in legal malpractice by failing to inform Ramirez of the 51% negligence rule. The trial court granted a partial summary judgment in favor of Pozza as to all of Ramirez's claims except the "claim that he was not informed of the 51% negligence rule." Pozza then filed a no-evidence motion for summary judgment specifically challenging the breach, causation, and damages elements of that claim. Although Ramirez claimed to have three witnesses who could provide evidence, Ramirez failed to present any competent summary judgment evidence in opposition to Pozza's motion. Because Ramirez failed to produce any evidence in response to Pozza's no-evidence motion, the trial court did not err in granting the no-evidence motion for summary judgment. See Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668 (Tex. 1984) (summary judgment proper even if it was granted on an erroneous ground if it may properly be upheld on an alternative ground expressly presented to the trial court).
Ramirez raises no complaint with regard to the partial summary judgment.
Ramirez includes twelve pages of a response in an appendix to his brief claiming those pages were destroyed before the response was sent to the trial court clerk for filing. Ramirez claims these pages are "a formal written statement resembling an affidavit." This court cannot consider documents attached to briefs that do not appear in the appellate record. See K-Six Television, Inc. v. Santiago, 75 S.W.3d 91, 97 (Tex.App.-San Antonio 2002, no pet.); see also Response Time, Inc. v. Sterling Commerce (North America), Inc., 95 S.W.3d 656, 62 (Tex.App.-Dallas 2002, no pet.) (upholding trial court sanction for fabrication of evidence); Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 235 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (same). Furthermore, a statement that is not notarized is not an affidavit and is not competent summary judgment proof. Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645-46 (Tex. 1995); Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex.App.-San Antonio 1995, writ denied).
The trial court's judgment is affirmed.