Opinion
No. 05-02-00650-CV.
Opinion filed January 16, 2004.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-01-4948-a.
Affirmed.
MEMORANDUM OPINION
Philip S. Bayoud, a pro se litigant, appeals the summary judgment granted in favor of Ellen Bayoud. Philip also brings a complaint regarding his motion for new trial. The facts are well known to both parties; thus we do not recite them here in detail. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4. See Tex.R.App.P. 47.4. We affirm the trial court's judgment.
Philip filed an "original petition to transfer title," in which he claimed an interest in interment rights, including a cemetery lot, purchased by Ellen on behalf of their brother Paige B. Bayoud. Ellen filed a no-evidence and a traditional motion for summary judgment. Philip filed a "motion to strike and dismiss defendant's motion for summary judgment." Following a hearing, the trial court granted both of Ellen's motions for summary judgment without specifying the grounds. Philip filed a motion for new trial, which was overruled by operation of law.
When reviewing a summary judgment granted on general grounds, the appeals court considers whether any theories set forth in the motion will support the summary judgment. Wright v. Fowler, 991 S.W.2d 343, 349 (Tex. App.-Fort Worth 1999, no pet.). When the trial court's judgment rests upon more than one independent ground or defense, the aggrieved party must assign error to each ground, or the judgment will be affirmed on the ground to which no complaint is made. Id.; see Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (providing appellant may challenge each ground asserted in motion for summary judgment by separate points of error or by general point that allows argument as to all possible grounds on which summary judgment should have been denied).
Ellen moved for a traditional summary judgment on grounds, inter alia, that Philip's suit was barred by limitations. Ellen contended that any claim arising from the alleged wrongful taking of interment rights belonging to Paige accrued at or before Paige's death, and was thus barred by the two- or four-year statute of limitations. Philip's petition judicially admitted that Ellen purchased the interment rights on August 27, 1994, and that Paige died on April 9, 1996. Philip's suit was filed May 10, 2001.
Philip brings a specific point as to the sufficiency of the evidence to establish Ellen's ownership of the rights at issue, and general points seeking reversal because fact issues and "false claiming" preclude summary judgment. He argues these points together. However, Philip neither brings a specific point addressing the affirmative defense of limitations, nor does he make any argument why summary judgment on limitations should have been denied. See Malooly, 461 S.W.2d at 121. Although Philip makes statements in his reply brief that could be construed as an argument that he did not discover any wrongdoing until he visited the cemetery and filed the case "at that time," he has waived such argument by failing to raise it in his initial brief. See Tex.R.App.P. 38.3; see Barnes v. SWS Fin. Servs., Inc., 97 S.W.3d 759, 765 (Tex. App.-Dallas 2003, no pet.) (noting waiver of complaint by failing to raise it in initial brief, although raised in reply brief). Moreover, having failed to raise any issue or argument regarding the discovery rule in his "motion to strike and dismiss defendant's motion for summary judgment" (which we construe as a response to the motion for summary judgment), Philip has waived this ground. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Because the trial court could have granted a traditional summary judgment based on limitations, a ground not challenged by Philip, we need not address his issues as they relate to a no-evidence summary judgment. See Rocha v. Faltys, 69 S.W.3d 315, 318 n. 1 (Tex. App.-Austin 2002, no pet.). We resolve Philip's issues regarding the summary judgment against him.
In an additional issue, Philip contends the trial court abused its discretion in not hearing his motion for new trial, after setting the motion for hearing. A trial court does not err in refusing to hold a hearing on a motion for new trial that presents no issues requiring evidence to be heard by the court. See Univ. of Tex. v. Morris, 163 Tex. 130, 133, 352 S.W.2d 947, 949 (1962). Philip's motion for new trial did not present any issues on which evidence must be heard. See Tex. R. Civ. P. 324(b). The motion reiterated Philip's allegations in the petition. Although the motion referred to "fraudulent action," it did not assert any newly discovered evidence. See id. Nor does Philip direct us to any such evidence. We resolve this issue against Philip. Finally, Philip's brief refers generally to his complaints below regarding the partiality of the trial court. We construe these references to complain of any orders or action on his motions to recuse. The record shows that a motion to recuse one judge was referred to the presiding judge of the administrative judicial district. As to a second motion to recuse anther judge, the record shows it was filed after Philip appealed. On this record, Philip cannot show any error regarding his motions to recuse.
Having resolved Philip's issues against him, we affirm the trial court's judgment.