Opinion
No. 01-08-00831-CV
Opinion issued June 24, 2010.
On Appeal from the 133rd District Court Harris County, Texas, Trial Court Cause No. 2006-01593.
Panel consists of Justices KEYES, ALCALA, and HANKS.
OPINION ON REHEARING
Appellant, Marwa Imkie, files a motion for en banc reconsideration of our memorandum opinion issued December 10, 2009 that upholds a summary judgment rendered in favor of appellee, The Methodist Hospital (hereinafter "Methodist"). Having received a response from Methodist, we withdraw our December 10, 2009 memorandum opinion and judgment, and issue this memorandum and judgment in their stead to clarify how the test in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939) applies to Imkie, the plaintiff in this case. Because we withdraw our December 10, 2009 opinion, Imkie's motion for en banc reconsideration is rendered moot. See Brookshire Brothers, Inc. v. Smith, 176 S.W.3d 30, 33 (Tex. App.-Houston [1st] 2004, pet. denied) (op. on reh'g) (noting that motion for en banc reconsideration becomes moot when motion for rehearing is granted and new opinion and judgment issue). In two issues in her original appellant's brief, Imkie contends the trial court erred by granting the no-evidence motion for summary judgment filed by Methodist, and erred by denying her motion for a new trial. We conclude that the trial court properly granted the motion for summary judgment, and did not abuse its discretion by denying the motion for new trial. We affirm the ruling of the trial court.
Background
In 2006, Imkie slipped and fell outside Methodist's pathology lab while working as a resident physician for the Baylor College of Medicine. Imkie alleges that she slipped due to a premises condition, either a buildup of paraffin residue or, alternatively, excessive floor wax and that Methodist was aware of this condition. Imkie filed a premises liability claim against Methodist.
Imkie was represented in her lawsuit by the Lanier Law Firm. When Lanier decided to stop representing Imkie, it gave her over three month's notice of that intent before it filed a motion to withdraw in the trial court. The trial court granted the motion to withdraw 19 days after Lanier filed it.
Shortly after Lanier withdrew from the case, Methodist filed a no-evidence motion for summary judgment on grounds that Imkie had no evidence to prove the elements of her premises liability claim. Imkie, litigating pro se, did not file a response to the no-evidence motion but did show up at the hearing. The trial court granted summary judgment in favor of Methodist.
Imkie, acting pro se, timely filed a motion for new trial asking that the summary judgment be set aside so that she could hire an attorney and file a response. In the motion for new trial, Imkie acknowledged that she had received Methodist's no-evidence motion, she had received notice of the summary judgment hearing, and she had not filed a written response to the motion. She asserted she did not have sufficient time obtain an attorney prior to the summary judgment hearing. Imkie's amended motion for new trial added the explanation that she believed her presence in court on the date of the summary judgment hearing was all that was required to respond to the motion for summary judgment, and that she was unaware that a written response was necessary.
When the trial court held an evidentiary hearing concerning her motion for new trial, Imkie was represented by an attorney. Imkie testified to the same facts asserted in her motion for new trial. After the hearing, the trial court denied Imkie's motion for new trial. Imkie now appeals the grant of summary judgment and the denial of her motion for new trial.
Motion for Summary Judgment
In her first issue, Imkie argues the trial court erred by granting Methodist's no-evidence motion for summary judgment.
A. Applicable Law
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence motion for summary judgment must be granted if, after adequate time for discovery, the moving party asserts 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 the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. TEX. R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006).
A party who files a no-evidence summary judgment motion pursuant to rule 166(a)(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant files its motion in proper form, the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises an issue of material fact regarding the elements challenged by the motion. Id. at 582; Landers v. State Farm Lloyds, 257 S.W.3d 740, 744 (Tex. App.-Houston [1st] 2008, no pet.).
Absent a timely response, a trial court must grant a no-evidence motion for summary judgment that meets the requirements of Rule 166a(i). TEX. R. CIV. P. 166a(i); Landers, 257 S.W.3d at 746; Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.-Corpus Christi 2001, pet. denied) ("[f]ailure to respond to a no-evidence motion is fatal"). If a nonmovant wishes to assert that, based on the evidence in the record, a fact issues exists to defeat a no-evidence motion for summary judgment, the nonmovant must timely file a response to the motion raising this issue before the trial court. Landers, 257 S.W.3d at 746 (citing TEX. R. CIV. P. 166a(i)).
The Rules of Civil Procedure require that a non-movant respond to a motion for summary judgment at least seven days before the summary judgment hearing. See TEX. R. CIV. P. 166a(c) ("[E]xcept on leave of court, the adverse party, not later than seven days prior to the date of the hearing may file and serve opposing affidavits or other written response.") Rule 166a(c) further states, "No oral testimony shall be received at the hearing." Id. B. Analysis
Methodist filed a motion that identifies the elements as to which there is no evidence, and the motion is in a form that is neither conclusory nor a general no-evidence challenge. See TEX. R. CIV. P. 166a(i); Moreno, 201 S.W.3d at 688. Methodist's no-evidence motion for summary judgment asserts it is entitled to summary judgment on Imkie's premises liability tort claim because there is no evidence that
(1) an unreasonably dangerous condition existed on Methodist's premises at the time of Imkie's fall,
(2) Methodist had any knowledge of any unreasonably dangerous condition,
(3) Methodist failed to take reasonable steps to reduce or eliminate any risk caused by the condition of the premises,
(4) Methodist's acts or omissions caused Imkie's injuries in any way, and
(5) there was any malice, extreme risk of injury, or actual subjective awareness of such risk on the part of Methodist.
The record undisputedly shows Imkie received timely notice of Methodist's summary judgment motion. See TEX. R. CIV. P. 166a(c). Imkie failed to file a written response to Methodist's motion for summary judgment, as required by the rules governing summary judgments. See id. Furthermore, Imkie did not file a motion for leave to file an untimely response. See id. Because Imkie failed to make any response to the no-evidence motion for summary judgment, we hold the trial court properly rendered summary judgment in favor of Methodist. Landers, 257 S.W.3d at 746 (holding trial court did not err in granting no-evidence motion for summary judgment in absence of timely response).
We overrule Imkie's first issue.
Motion for New Trial
In her second issue, Imkie argues the trial court abused its discretion by denying her motion for a new trial.
A. Standard of Review
We review a trial court's denial of a motion for new trial for abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). The trial court abuses its discretion if it acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under an abuse of discretion standard, we view the evidence in the light most favorable to the trial court's actions. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st] 1993, writ denied). When we determine whether the trial court abused its discretion, we may not substitute our judgment for that of the trial court unless its decision was so arbitrary that it exceeded the bounds of reasonableness. Clarendon Nat'l Ins. Co. v. Thompson, 199 S.W.3d 482, 494 (Tex. App.-Houston [1 Dist.] 2006, no pet.). Accordingly, we review the evidence submitted to the trial court in the light most favorable to that court's ruling, draw all legitimate inferences from the evidence, and defer to the trial court's resolution of conflicting evidence. Id. B. Time to Retain New Counsel
Imkie contends she should be granted a new trial on the grounds that she was not given sufficient opportunity to retain new counsel for the summary judgment hearing. She asserts her response to Methodist's motion for summary judgment was due on June 16, 2008, seven days before the summary judgment hearing, giving her only 14 days to find new counsel to respond to the motion. Appellant further claims her ability to locate new counsel was hindered by prejudicial statements made by opposing counsel and due to the extent of her injuries.
The record shows that on December 26, 2007, the Lanier Law Firm notified her of its desire to withdraw as her counsel, and two days later she signed an acknowledgment of that notification. On May 5, 2008, when the trial court granted Lanier's motion to withdraw as counsel, Imkie had over five months to obtain new counsel, but did not, nor did she file a motion for continuance of the summary judgment hearing or request permission to file a late response. Besides conclusory assertions regarding her injuries and statements of Methodist's counsel, Imkie has made no showing that her failure to have counsel at the hearing was not due to her own fault or negligence. See State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984) (concluding that where absence of counsel is urged as grounds for continuance, party must show that failure to be represented at trial is not due to party's own fault or negligence) (citing Counts v. Counts, 358 S.W.2d 192, 200 (Tex. Civ. App.-Austin 1962, writ dism'd w.o.j.) (new trial will not be awarded to litigant whose counsel withdraws from case prior to trial but in time for litigant to engage services of another attorney)); Wilburn v. GE Marquette Med. Sys., 163 S.W.3d 264, 270 (Tex. App.-El Paso 2005, pet. denied) (applying holding in Crank to context of summary judgment hearing). We hold that Imkie's contention that the trial court abused its discretion in refusing her motion for new trial is without merit, as her failure to retain counsel does not constitute good cause for the trial court to grant her a new trial. Cf. Landers v. Anderson, 788 S.W.2d 940, 941-42 (Tex. App.-Fort Worth 1990, no writ) (holding no abuse of discretion in denying continuance when client voluntarily agreed to withdrawal of counsel and had almost four months to retain new counsel).
C. Craddock
Imkie asserts she should be granted a motion for a new trial under the equitable principles of Craddock. See 133 S.W.2d at 124. In Craddock, the Texas Supreme Court held that under equitable principles a default judgment should be set aside when the "defendant" establishes (1) the failure to answer was not intentional or the result of conscious indifference, but the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no undue delay or otherwise injure the plaintiff. Craddock, 133 S.W.2d at 126. Craddock does not apply to plaintiffs; it is an equitable principle applicable to judgments rendered against defendants. Craddock, 133 S.W.2d at 126 (noting that its new rule "prevents an injustice to the defendant without working an injustice on the plaintiff"); see also, e.g., In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) ("When determining whether the defendant's failure to file an answer was intentional or due to conscious indifference, a court looks to the knowledge and acts of the defendant."); Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994) ("Once a defendant has alleged that granting a new trial will not injure the plaintiff, the burden of going forward with proof of injury shifts to the plaintiff."); Hornell Brewing Co., Inc. v. Lara, 252 S.W.3d 426, 428 (Tex. App.-Houston [14th] 2008, no pet.) ("If a defendant meets all three Craddock elements, the trial court abuses its discretion in failing to order a new trial.").
We recognize that the Texas Supreme Court has extended the equitable principles in Craddock into summary judgments under limited circumstances where a pro se non-movant defendant appeared in person but mistakenly did not respond in writing to a summary judgment. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). The general rule, however, is that Craddock is inapplicable to summary judgments where the non-movant, who had notice of the hearing and an opportunity to seek a continuance or request leave to file a late response, failed to timely respond to a summary judgment motion. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002).
We conclude the equitable principles of Craddock do not apply to this situation where Imkie, the plaintiff, failed to secure new trial counsel for over five months after her counsel withdrew from the case, received notice of the summary judgment hearing, received the summary judgment motion, and failed to request leave to file a late response. Id. We hold the trial court properly overruled Imkie's motion for new trial that asserted the principles of Craddock. We overrule Imkie's second issue.
Conclusion
We affirm the judgment of the trial court.