Opinion
No. 04-17-00493-CV
06-06-2018
Bruce Lee BECKER, Appellant v. Pedro BECKER and Manuela Becker, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 10, Bexar County, Texas
Trial Court No. 2016-CV-04644
Honorable Jason Wolff, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
Bruce Lee Becker challenges a summary judgment granted in favor of Pedro Becker and Manuela Becker. Bruce is pro se and raises twenty issues on appeal. We affirm the trial court's judgment.
BACKGROUND
Bruce and his mother, Manuela, jointly own the home in which Manuela lives. The underlying lawsuit arose from a dispute over Bruce's refusal to sign a document to convey his interest in the home to Manuela. Manuela asserted Bruce verbally promised to convey her the interest when she turned sixty-five. After receiving a text message and demand letter from Manuela and a text message from Pedro, Bruce's brother, demanding that Bruce convey his interest to Manuela, Bruce filed the underlying lawsuit against Manuela and Pedro asserting claims for extortion, exploitation, coercion/economic duress, libel/slander, intentional infliction of emotional distress, negligence, and malicious prosecution.
Bruce filed his original petition on August 23, 2016. On May 31, 2017, Manuela and Pedro filed a traditional and no-evidence motion for summary judgment. In response to the motion, Bruce filed a motion for continuance and motion for sanctions, asserting he was not properly served with the motion, and a document that included an "opposition to defendants['] motion." The documents filed by Bruce in response to the summary judgment motion do not cite any evidence Bruce relied on to raise a genuine issue of material fact with regard to any of the elements of his claims challenged in the no-evidence motion.
On June 9, 2017, the trial court held a hearing on Bruce's motion for continuance and motion for sanctions. The trial court concluded Bruce was properly served with the summary judgment motion; however, the trial court granted Bruce a continuance to June 30, 2017. On June 30, 2017, the trial court held a hearing on the summary judgment motion. On July 25, 2017, the trial court signed a written order granting the summary judgment. Bruce appeals.
The reporter's record from the hearing held on June 30, 2017, shows the trial court heard and granted Bruce's motion for discovery protective order and heard and denied Bruce's motion to disqualify counsel. When Pedro's and Manuela's attorney announced the next motion to be heard would be the motion for summary judgment, the trial court went off the record.
"When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious." Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); see also Garcia v. Garza, 311 S.W.3d 28, 35 (Tex. App.—San Antonio 2010, pet. denied) (same).
WAIVER
"A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure." Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex. App.—San Antonio 1999, pet. denied) (internal quotation omitted). "The Texas Rules of Appellate Procedure require adequate briefing." ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Specifically, Rule 38.1(i) requires that an appellant's brief contain "clear and concise" arguments, "with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i); see also In re Estate of Blankenship, 392 S.W.3d 249, 259 (Tex. App.—San Antonio 2012, no pet.). Failure to satisfy this requirement waives the issues presented on appeal. See In re Estate of Blankenship, 392 S.W.3d at 259; see also Brannan v. Ford Motor Co., No. 14-16-00789-CV, 2018 WL 1057434, at *2 (Tex. App.—Houston [14th Dist.] Feb. 27, 2018, no pet.) (mem. op) (holding issue challenging summary judgment waived where brief did not cite evidence countering motion); Davis v. Citibank, NA, 05-12-01386-CV, 2014 WL 1022326, at *2 (Tex. App.—Dallas Mar. 13, 2014, no pet.) (mem. op.) (holding issues waived where appellant "failed to specify the evidence that raised the alleged fact issues on his claims and failed to cite where in the record this evidence may be found"). In his brief, Bruce does not direct this court's attention to any evidence he presented in response to the no-evidence summary judgment. Therefore, Bruce's issues on appeal are waived. In the interest of justice, however, we will briefly address the procedure followed by the trial court in granting the summary judgment because many of Bruce's complaints appear to relate to procedural issues.
NO-EVIDENCE SUMMARY JUDGMENT PROCEDURE AND ANALYSIS
Rule 166a(i) of the Texas Rules of Civil Procedure sets forth the following procedures governing no-evidence motions for summary judgment:
After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.TEX. R. CIV. P. 166a(i).
"[T]here is no specific minimum amount of time that a case must be pending before a trial court may entertain a no-evidence motion for summary judgment; the rule only requires an 'adequate time for discovery.'" D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.). In this case, the lawsuit was pending nine months before the summary judgment motion was filed and ten months before the motion was heard. See Rest. Teams Int'l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 340 (Tex. App.—Dallas 2002, no pet.) (holding there was adequate time for discovery where case had been on file seven months and motion had been on file 26 days before it was granted); McClure v. Attebury, 20 S.W.3d 722, 730 (Tex. App.-Amarillo 1999, no pet.) (concluding there was adequate time for discovery where motion was filed seven months after suit was filed and hearing was held nine months after suit was filed); TEX. R. CIV. P. 190.3(b) (generally limiting discovery under level 2 to nine months).
A "summary judgment proceeding is not a conventional trial but rather an exception to the usual and traditional form of procedure wherein witnesses are heard in open court and documentary evidence is offered and received in evidence." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997). In fact, rule 166a expressly provides, "No oral testimony shall be received at the hearing." TEX. R. CIV. P. 166a(c). As a result, "an oral hearing on a motion for summary judgment is not required." Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Furthermore, "creating a reporter's record [of a summary judgment hearing] is 'a practice neither necessary nor appropriate to the purposes of such a hearing.'" Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 291 n.141 (Tex. 2004) (quoting McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.1993)); see also Lynch v. O'Hare, No. 05-17-00175-CV, 2018 WL 459823, at *1 (Tex. App.—Dallas Jan. 18, 2018, no pet.) (mem. op.) (same). Finally, "findings of fact and conclusions of law have no place in a summary judgment proceeding." Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994); see also Lilly v. Tex. Dep't of Criminal Justice, 472 S.W.3d 411, 421 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (same).
We review a trial court's order granting a summary judgment de novo. Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). "A [no evidence] motion for summary judgment must be granted if: (1) the moving party asserts that 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 (2) the respondent [fails to produce more than a scintilla of] summary judgment evidence raising a genuine issue of material fact on those elements." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) ("More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.") (internal quotation omitted).
In this case, Pedro and Manuela filed a no-evidence motion for summary judgment listing the elements of each of Bruce's claims and stating the elements on which they claimed there was no evidence. As a result, Bruce had the burden to file a response "point[ing] out evidence that raise[d] a fact issue on the challenged elements." TEX. R. CIV. P. 166a(i) cmt. Having reviewed the documents Bruce filed in response to the summary judgment motion, we hold that he failed to meet his burden. See Vaschenko v. Novosoft, Inc., No. 03-16-00022-CV, 2018 WL 1547270, at *7 n.7 (Tex. App.—Austin Mar. 30, 2018, no pet. h.) (mem. op.) (noting response to no-evidence motion for summary judgment must cite evidence); In re A.J.L., No. 14-16-00834-CV, 2017 WL 4844479, at *4-5 (Tex. App.—Houston [14th Dist.] Oct. 26, 2017, no pet.) (mem. op.) (holding respondent who "did not cite, quote, or otherwise point out to the trial court the evidence she relied on to create a fact issue on the challenged elements, in any portion of her response" failed to meet her burden under rule 166a(i)); Coleman v. Calvano, No. 05-12-00740-CV, 2013 WL 5988446, at *5 (Tex. App.—Dallas Nov. 12, 2013, no pet.) (mem. op.) (affirming no evidence summary judgment where response did not "cite to evidence showing that there is a genuine issue of material fact on any of the challenged elements of her claims").
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice