Opinion
No. 08-02-00501-CV.
January 29, 2004.
Appeal from the 346th District Court of El Paso County, Texas, (Tc#2002-1190).
Alvin Reaux for Appellant.
Hon. Robbyn P. Wysocki, Lawson Fields McCue Lee Campbell, P.C. for Appellee.
Before Panel No. 1, LARSEN, McCLURE, and CHEW, JJ.
MEMORANDUM OPINION
Reaux appeals pro se from a denial of his summary judgment motion in his case alleging legal malpractice and deceptive trade practices. We affirm.
Factual Summary
In March 2002, Reaux sued Scherr over his handling of Reaux's case against a landlord. Reaux filed suit against Scherr on behalf of himself and his family members, despite the fact that he was proceeding pro se. There is no evidence in the record of any discovery. In September 2002, Scherr filed a motion for a no-evidence summary judgment. Reaux's response detailed his unsuccessful efforts toward securing an attorney, and included a request that the judge appoint an attorney ad-litem to protect his stepson's interests. He claimed those were among the reasons that a reasonable time for discovery had not elapsed. He attached the records from the underlying lawsuit. He also requested summary judgment. He did not include an affidavit, nor evidence directly refuting the allegations made in Scherr's motion for summary judgment. At an October 2002 hearing on Scherr's motion, the court informed Reaux that he is barred by law from representing anyone except himself in a pro se lawsuit. The court also informed him that it could not consider Reaux's response to a summary judgment if it was not accompanied by an affidavit. The court also explained that because there was no designated expert witness, and because he was lacking evidence as to at least one of three elements of his cause of action, the lawsuit could not proceed. The judge then granted Scherr's motion, and denied Reaux's motion.
Summary Judgment Proper
In order to support a summary judgment, the movant bears the burden of proof, and all doubts concerning the existence of a genuine issue of fact must be resolved against the movant. Roskey v. Tex. Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex. 1982). Once the movant proves a right to a summary judgment, the burden shifts to the nonmovant to present evidence creating genuine issues of material fact. Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).
In a no-evidence summary judgment the movant may, after sufficient time for discovery, move for summary judgment if there is no evidence to support one or more elements of a claim on which the nonmovant has the burden of proof at trial. Tex. R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence and the reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id.
Scherr's no-evidence motion for summary judgment stated there was no evidence of breach of standard of care, proximate cause, or damages, required elements of a cause of action for legal malpractice. Scherr also asserted there was no evidence of elements essential to an action for deceptive trade practices, including false, misleading, or deceptive act or practice as set forth in the Texas Business and Commerce Code section 17.49, relied on to Reaux's detriment, that was a producing cause of damages. He also pointed to the failure by Reaux to pursue discovery.
Reaux failed to bring forth summary judgment proof raising a fact issue, therefore, he has not properly carried his burden for defeating the motion for summary judgment. Scherr sufficiently stated the grounds on which it was moving for summary judgment, and the elements to which there was no evidence under rule 166a(i). A defendant who conclusively negates at least one essential element of each theory pled by the plaintiff is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); see Camacho v. Samaniego, 954 S.W.2d 811, 817 (Tex. App.-El Paso 1997, pet. denied). As Scherr's motion for summary judgment met all procedural requirements, and Reaux failed to present any evidence that would preempt a summary judgment, the judge did not err in granting summary judgment. Reaux's sole point of error is overruled.
Conclusion
Having overruled Reaux's sole point of error, the judgment of the trial court is affirmed.