Opinion
No. 05-10-00409-CV
01-27-2012
TIMOTHY L. BARTON, Appellant v. CADLES OF GRASSY MEADOWS II, LLC, Appellee
AFFIRM; Opinion issued January 27, 2012
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. cc-08-05797-B
MEMORANDUM OPINION ON REHEARING
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice FitzGerald
Appellant Timothy L. Barton filed a motion for rehearing. The Court overrules Barton's motion for rehearing. On the Court's own motion, we withdraw our memorandum opinion issued November 30, 2011 and vacate our judgment of that date. The following is now the opinion of this Court.
Barton sued appellee Cadles of Grassy Meadows II, LLC, among others, for damages, declaratory judgment, and injunctive relief. The trial court rendered a summary judgment disposing of all of Barton's claims against Cadles, and Barton nonsuited the other defendants. Barton appeals the summary judgment. We affirm because Barton has not challenged all of the summary-judgment grounds relied on by the trial judge.
I. Background
Barton alleged the following facts in his live pleading. He is a Texas resident. In November 2007, Cadles and the FDIC sued Barton in Collin County, seeking to domesticate a 1995 Connecticut judgment against him. In April 2008, that suit was dismissed without prejudice. In June 2008, Cadles caused discovery subpoenas to be served on Barton and four financial institutions with which he does business. Although Barton's pleading is vague, he appears to allege that Cadles caused the subpoenas to be issued in Connecticut based on the Connecticut judgment against Barton.
In July 2008, Barton filed the instant civil action against Cadles and the four financial institutions that had allegedly received the subpoenas. He later amended his petition. In his amended petition, he sought damages against Cadles under a variety of theories, such as abuse of process and tortious interference. He also sought a declaratory judgment decreeing "that the putative Connecticut judgment is void and of no force and effect and barred by the Texas statute of limitations." Barton also sought injunctive relief to prevent the four financial institutions from releasing his information and to prevent Cadles from gathering information or seizing assets from those institutions. Barton later nonsuited the financial-institution defendants, leaving Cadles as the only defendant.
Cadles filed a no-evidence motion for summary judgment and a separate "motion for final summary judgment" that was supported with evidence. Barton responded to the summary-judgment motions. The trial judge signed a summary judgment, then later signed an amended summary judgment. In the amended judgment, the judge recited that Cadles was "granted final summary judgment" on both its no-evidence and its "traditional" motion for summary judgment. The judge also decreed that the 1995 Connecticut judgment "was rendered more than ten years before the commencement of action on the judgment in Texas against . . . Barton," and therefore "an action may not be brought in Texas on the Connecticut judgment." The judge denied all other relief sought by Barton, and Barton appealed.
II. Analysis
Although Barton asserted several different claims against Cadles in his live pleading, his appeal is limited to his claim for declaratory judgment. Accordingly, we limit our analysis to his declaratory-judgment claim. See McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 824 n.2 (Tex. App.-Dallas 2010, no pet.) (because appellant made no appellate argument as to one of several dismissed claims, appeal was waived as to unaddressed claim).
As to his declaratory-judgment claim, Barton raises two issues on appeal. In his first issue, he asserts that the summary judgment is erroneous because Cadles did not meet its burden of proof. In his second issue, he asserts that the trial judge erred by failing to declare the rights, status, and other legal relations between Barton and Cadles. In the first of four reply issues, Cadles argues that Barton has waived his appeal because he has not challenged all grounds on which the trial judge granted summary judgment. Specifically, Cadles argues that Barton has failed to raise any appellate challenge to Cadles's no-evidence attack on Barton's declaratory-judgment claim.
First we consider whether Cadles actually asserted no-evidence grounds as to Barton's declaratory-judgment claim. Cadles concedes that its no-evidence motion for summary judgment is equivocal. In paragraph 5 of the motion, Cadles stated, "Plaintiff Barton seeks a judicial declaration by this Texas Court that the Connecticut Judgment is void. This Declaratory Judgment claim is not encompassed by this No Evidence Motion for Summary Judgment." But in paragraph 10, Cadles states, "By this No Evidence Motion for Summary Judgment Cadles challenges the following claims made in Plaintiff's First Amended Petition[:] (i) Declaratory judgment . . . ." And Cadles fleshed out its no-evidence challenge to Barton's declaratory-judgment claim in paragraph 11, asserting that Barton could not produce any evidence "[t]hat Barton was not served in accordance with Connecticut law governing service by publication and in accordance with due process." Barton filed special exceptions, but he did not specially except to the no-evidence motion on the ground that the motion was unclear as to whether the motion encompassed Barton's declaratory-judgment claim. Moreover, Barton addressed Cadles's no-evidence challenge to his declaratory-judgment claim in his summary-judgment response. We conclude that Cadles did raise a no-evidence ground attacking Barton's claim for declaratory judgment. And we conclude that the trial judge sustained that ground by reciting in his judgment that "Cadles is granted final summary judgment on its No-Evidence Motion for Final Summary Judgment."
The question then becomes whether Barton has adequately challenged Cadles's no-evidence ground for summary judgment on Barton's declaratory-judgment claim. If an appellant does not challenge each possible ground on which summary judgment could have been granted, we must uphold the summary judgment on the unchallenged ground. Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.-Dallas 2009, pet. denied); see also Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). We conclude that Barton has not challenged Cadles's no-evidence ground for summary judgment. In his statement of the case, Barton describes the summary judgment only as one under Rule 166a(c); he does not mention Cadles's no-evidence motion for summary judgment or the no-evidence summary-judgment rule, Rule 166a(i). In stating the standard of review on appeal, Barton refers only to the standard applicable to summary judgments under Rule 166a(c). The only reference to Rule 166a(i) or no-evidence summary judgments in Barton's brief is an assertion in the statement of facts that the trial judge granted Cadles's "motions for summary judgment, including its Motion for Summary Judgment on Barton's declaratory judgment action (which was improperly presented as both under Rule 166a(c) and 166a(i)) . . . ." This unsupported assertion does not suffice as an argument for reversing the no-evidence summary judgment on the declaratory- judgment claim. See Jarvis, 298 S.W.3d at 313-14 (appellant must present argument as to all possible summary-judgment grounds); In re M.A.S., 233 S.W.3d 915, 924 (Tex. App.-Dallas 2007, pet. denied) ("Failure to provide substantive analysis waives an issue on appeal.").
III. Disposition
Barton did not adequately challenge and brief all grounds on which the trial court granted summary judgment on Barton's declaratory-judgment claim. Accordingly, we affirm the judgment of the trial court.
KERRY P. FITZGERALD
JUSTICE
100409F.P05