Opinion
05-23-01272-CV
12-27-2024
BENITO LAMBERT, Appellant v. CITYSQUARE, INC., CONCENTRA, AND TEXAS DIVISION OF INSURANCE, Appellees
On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-14288
Before Justices Molberg, Reichek, and Smith
MEMORANDUM OPINION
CRAIG SMITH JUSTICE
Pro se appellant Benito Lambert appeals the trial court's final judgment against him. Despite Lambert's continued failure to comply with the required briefing rules in his corrected brief after being warned of the briefing deficiencies in his first-filed brief, we will address what we perceive his argument to be in the interest of justice. We construe Lambert's argument on appeal as a challenge to the trial court's failure to rule on his default judgment and to the trial court's order granting summary judgment without considering his response. For the reasons discussed below, we affirm.
See Tex. R. App. P. 9.4(i)(3) (requiring certificate of compliance), 9.5(e) (requiring certificate of service), 38.1(i) (requiring appropriate citations to legal authorities and to the record).
Factual and Procedural Background
Lambert worked for appellee CitySquare, Inc. from September 2018 through May 2019 as a barista. According to Lambert, he began to feel pain in his right arm, which made sleep virtually impossible. The pain began in January 2019 and worsened to the point he had to take time off work beginning March 7, 2019, and seek medical care on March 10. He was diagnosed with de Quervain's tenosynovitis, also known as "barista wrist." On May 10, 2019, Lambert was terminated because his position was eliminated.
Lambert filed a workers' compensation claim with the Texas Department of Insurance, Division of Workers' Compensation alleging he suffered a work-related injury in March 2019. At the time, CitySquare was covered by a workers' compensation policy issued by Texas Mutual Insurance Company. An administrative law judge denied his claim finding he did not sustain a compensable injury and that his May 15, 2019 report of the injury was untimely. The appeals panel upheld the administrative law judge's decision on July 5, 2022.
On October 13, 2022, Lambert filed suit against CitySquare, Inc., Concentra, and "Texas Division of Insurance"; however, according to the trial court's docket sheet only CitySquare was served with citation of service. In his original petition, Lambert appears to have asserted claims for negligence, gross negligence, intentional infliction of emotional distress, slander, and retaliation/wrongful termination in connection with his injury. He also appeared to seek judicial review of the Texas Department of Insurance, Division of Workers' Compensation's decision on his workers' compensation claim, alleging the Division never investigated his version of events and was negligent in reaching its decision. Lambert sought $750,000 in damages from CitySquare, $500,000 from Concentra, and $500,000 from the Division.
On June 14, 2023, Lambert moved for a no-answer default judgment against CitySquare. CitySquare filed its original answer generally denying Lambert's allegations on June 15 and an amended answer asserting several affirmative defenses on August 15. CitySquare moved for summary judgment on October 18, 2023, arguing that (1) each of Lambert's claims, besides slander, was barred by a two-year statute of limitations; (2) Lambert's claims for negligence and gross negligence were barred by the exclusive remedy of the Texas Workers' Compensation Act under section 408.001 of the Texas Labor Code; (3) Lambert's claim for slander failed because the alleged comments were made in the course of judicial proceedings; (4) CitySquare was not a proper party if Lambert's petition was construed as a petition for judicial review of the Division's decision; and (5) even if CitySquare was a proper party, Lambert filed his petition after the forty-five day deadline expired. Lambert filed his own motion for summary judgment the day before CitySquare's motion was set for hearing. CitySquare objected to Lambert's motion and moved to strike it, but the trial court did not expressly rule on CitySquare's objection.
After submission, the trial court granted CitySquare's motion for summary judgment and entered judgment in its favor on all claims asserted against it by Lambert. The combined order and judgment further provides, "This order disposes of all claims and all parties, and is final and appealable." This appeal ensued.
Analysis
Lambert does not set out enumerated issues in his brief but generally focuses on the alleged injustice he has suffered by the parties involved in his injury and workers' compensation claim, as well as by the trial court judge and court staff in the suit below. We have discerned three arguments for this appeal: (1) the trial court should have granted Lambert's June 2023 motion for default judgment instead of allowing CitySquare to answer the suit, (2) the trial court should have considered his response to CitySquare's motion for summary judgment, and (3) there should be a reporter's record of the summary judgment hearing.
1. Motion for Default Judgment
CitySquare was served with citation of service on January 23, 2023. Having not received an answer from CitySquare, Lambert filed a no-answer motion for default judgment on June 14, 2023. CitySquare answered the next day, on June 15, 2013.
Rule 107 provides, "No default judgment shall be granted in any cause until proof of service . . . shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment." Tex.R.Civ.P. 107(h). However, "[a] default judgment may not be rendered after the defendant has filed an answer." Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam). "Once an answer is filed, even if it is filed after the due date, the trial court may not render a no-answer default judgment." Nkansah v. Tex. Workforce Comm'n, No. 05-17-00281-CV, 2018 WL 2749765, at *3 (Tex. App.-Dallas May 31, 2018, pet. denied) (mem. op.); see also Ameri-First Fin. Corp. v. Benemax Emp. Leasing, Inc., No. 05-01-00663-CV, 2002 WL 216123, at *1 (Tex. App.-Dallas Feb. 13, 2002, no pet.) (not designated for publication) ("If an answer is filed after the answer date but before the trial court announces the default judgment in open court or signs a judgment, it is error for the court to render a default judgment.").
CitySquare filed its answer the day after Lambert filed its motion for default judgment and before the trial court announced a default judgment in Lambert's favor. Because CitySquare answered the suit, the trial court did not have authority to grant Lambert's motion. Cf. Nkansah, 2018 WL 2749765, at *3 (concluding appellant's claim that the trial court erred by failing to take action on his motion for default judgment was rendered moot when appellee filed its answer twelve days after appellant filed its motion for default judgment). Lambert's argument to the contrary is overruled.
2. Summary Judgment Response
Lambert also argues that the trial court erred by ruling on CitySquare's motion for summary judgment without considering his response. He asserts that he emailed his reply to CitySquare's motion for summary judgment, instead of e-filing it, because the pro se legal assistant for Dallas County was out that day. Lambert further alleges that the trial judge aided and abetted appellees in winning this case, which appellees never took seriously. He requests this Court to conduct a forensic investigation of the trial judge and her clerk so that the corruption can be unveiled. He contends that opposing counsel has not refuted any of his factual claims but has instead relied on procedural technicalities to defeat a pro se litigant.
Our review of the record does not show that Lambert emailed his response to CitySquare's motion. Instead, the clerk's record shows that Lambert's motion for summary judgment, which included responses to CitySquare's motion, was filed on November 13, 2023, the day before the hearing on CitySquare's motion for summary judgment. CitySquare moved to strike Lambert's motion for summary judgment to the extent his motion was considered by the court as a response to CitySquare's motion because it was not filed seven days prior to the summary judgment hearing. See Tex. R. Civ. P. 166a(c) ("Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response."). The trial court's order granting CitySquare's motion for summary judgment does not indicate that the trial court considered Lambert's motion for summary judgment or expressly ruled on CitySquare's request to strike his motion as untimely. Assuming the trial court did not consider Lambert's combined motion and response in granting CitySquare's motion for summary judgment, we cannot conclude that the trial court erred because Lambert's response was untimely and he did not move for leave of court to file a late response. Id.
Moreover, even if we assumed the trial court did consider Lambert's response, on appeal, Lambert does not challenge any of the grounds asserted by CitySquare below and on which the trial court could have granted summary judgment. "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." Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 832 (Tex. App.-Dallas 2014, no pet.). Therefore, we overrule Lambert's argument that the trial court erred by not considering his response when granting CitySquare's motion for summary judgment.
3. Reporter's Record
Lambert also takes issue with the lack of reporter's record in this case and questions what the trial court and trial court staff are trying to hide. The record before us does not indicate anything mischievous occurring in the trial court below.
First, we note that the notice of CitySquare's summary judgment hearing explicitly states, "[T]he hearing will be by submission." Second, when asked, the court reporter advised this Court by letter that no record was taken and, thus, none could be produced for Lambert's appeal. Furthermore, summary judgment hearings are not evidentiary; the movant must establish he is entitled to summary judgment within his written motion. See Tex. R. Civ. P. 166a(c) ("No oral testimony shall be received at the hearing."). Therefore, Lambert's argument is without merit.
Conclusion
Having overruled Lambert's arguments on appeal, we affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered.
Justices Molberg and Reichek participating.