Opinion
No. 05-15-00473-CV
04-04-2016
LYNDALL D. MCDANIEL, Appellant v. JESSY DALE SMITH, Appellee
On Appeal from the County Court at Law No. 1 Hunt County, Texas
Trial Court Cause No. CC-1300047
MEMORANDUM OPINION
Before Justices Fillmore, Evans, and Stoddart
Opinion by Justice Evans
Lyndall D. McDaniel appeals from the trial court's order granting summary judgment in favor of Jessy Dale Smith in his lawsuit against Smith. In five issues, McDaniel challenges the trial court's summary judgment, its refusal to permit him to amend his petition, and its refusal to sanction Smith for "willful litigation misconduct." We affirm.
BACKGROUND
The following is alleged in McDaniel's live pleading. McDaniel wrote a $6,444.22 check to Smart Roofing, LLC to repair damage to his roof after a hail storm in the fall of 2012. He gave the check to two Smart Roofing employees who in turn gave it to Smith, then owner of Smart Roofing, who endorsed the check the next day. The day after he endorsed the check, Smith sold the company to another Smart Roofing employee. McDaniel's roof was never repaired. McDaniel sued, alleging Smith personally misappropriated his check to Smart Roofing, and asserted claims against him for unjust enrichment, conversion, fraud, breach of contract, statutory theft, and DTPA violations. Smith is the sole defendant named in McDaniel's lawsuit. In his petition, McDaniel sought to pierce the corporate veil alleging Smart Roofing was Smith's alter ego.
Smith filed a no-evidence motion for summary judgment on the claims against him and later filed a supplemental summary judgment motion incorporating the no-evidence motion and adding traditional summary judgment grounds. In the traditional summary judgment motion, Smith asserted that McDaniel's responses to requests for admission on file with the trial court conclusively established several of Smith's affirmative defenses and negated at least one element of each of McDaniel's claims against him. The trial court held a hearing on Smith's motion on March 4, 2015. McDaniel did not file a written response to either of Smith's motions for summary judgment before the hearing.
On March 17, 2015, the trial court signed an order granting Smith summary judgment. The order expressly stated Smith conclusively established that Smith was not liable in the capacity sued, that Smith had no privity of contract with McDaniel, and McDaniel could not recover in the capacity in which he sued. The order also specified that Smith conclusively negated at least one essential element of each of McDaniel's claims against him. The next day, McDaniel's "Plaintiff's Brief Regarding Alter Ego Liability" was filed with the clerk. In the brief, McDaniel argued he was not obligated to name Smart Roofing as a defendant to have viable claims against Smith, his failure to join Smart Roofing as a party to the lawsuit was not a proper ground for summary judgment, and he adequately pleaded a statutory theft claim against Smith. His brief regarding alter ego did not attach nor incorporate any evidence. McDaniel then filed this appeal.
ANALYSIS
In his first two issues, McDaniel challenges the trial court's summary judgment in favor of Smith. He generally argues that Smith was individually liable for his own actions and that McDaniel submitted sufficient evidence to establish Smith was liable for each of the claims McDaniel asserted against him.
We begin our discussion with some well-known rules applicable to summary judgment procedure. With respect to traditional summary judgment motions, issues a non-movant contends preclude a movant's entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. See TEX. R. CIV. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)). Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. TEX. R. CIV. P. 166a(c). If a non-movant fails to present any issues in a response or answer in the trial court, he is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant. McConnell, 858 S.W.2d at 343.
Among Smith's asserted traditional grounds for summary judgment, he contended McDaniel's responses to requests for admission conclusively negated at least one element of each of McDaniel's causes of action against him. As noted above, the record reveals that McDaniel did not file a written answer or response to Smith's supplemental motion for summary judgment and even his brief regarding alter ego liability—filed after the summary judgment order was signed—did not attach any evidence. In his appellate brief, McDaniel cites to evidence attached to a motion for summary judgment McDaniel filed with the trial court in 2014—approximately eleven months before the summary judgment order—to support his contention that he submitted sufficient evidence to defeat Smith's summary judgment motion. There is nothing in the record before us, however, to reflect that McDaniel's motion for summary judgment was ever considered by the trial court or that the summary judgment evidence attached to McDaniel's motion was incorporated into a written response or answer that was before the trial court on March 4, 2015. Indeed, the trial court's March 17, 2015 order does not reference McDaniel's summary judgment motion at all and instead states, "On March 4, 2015, the Court considered Defendant's [Smith's] Motion for Summary Judgment . . . ." Because the record does not reflect that the summary judgment evidence on which McDaniel relies was before the trial court at the time of the hearing on Smith's summary judgment motion, we cannot consider such evidence in reviewing the trial court's summary judgment. See TEX. R. CIV. P. 166a(c) ("The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response."). Moreover, McDaniel makes no argument on appeal challenging the legal sufficiency of Smith's grounds that his summary judgment evidence conclusively negated at least one element of each of McDaniel's claims against him. Accordingly, McDaniel has failed to demonstrate on appeal that the trial court reversibly erred in granting Smith summary judgment. We resolve McDaniel's first and second issues against him.
Our record does not contain any notice of hearing of, or order ruling on, McDaniel's 2014 summary judgment motion.
Our resolution of McDaniel's first and second issues makes it unnecessary to address his third issue requesting we render a monetary judgment in his favor based on evidence contained in McDaniel's motion for summary judgment. This issue presumes that McDaniel is entitled to summary judgment in his favor on his claims against Smith based on the evidence attached to his 2014 summary judgment motion. We have already concluded that the 2014 summary judgment evidence cannot be considered in this appeal. Moreover, the record does not contain an order on, or refusal by the trial court to rule on, McDaniel's motion for summary judgment. See TEX. R. APP. P. 33.1(a); In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) ("Under Rule 33.1(a)(2) of the Rules of Appellate Procedure, in order to present a complaint for appellate review, the record must reflect that the trial court '(A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule . . . and the complaining party objected to the refusal.'"). Accordingly, we do not reach the issue of whether this evidence established McDaniel's actual damages as a matter of law.
In his fourth issue, McDaniel contends the trial court erred in refusing to allow him to amend his petition or join additional parties before granting Smith summary judgment. In his appellate brief, McDaniel does not indicate where he requested such relief in the trial court nor does the appellate record before us contain such a request or motion. Because McDaniel did not present this issue by written motion or answer to the trial court before the summary judgment hearing, it cannot be considered on appeal as a ground for reversal of the trial court's summary judgment. See id.
In his fifth issue, McDaniel contends the trial court abused its discretion by refusing to sanction Smith for "willful litigation misconduct." McDaniel filed a motion for sanctions and motion for default judgment on October 16, 2014, asserting Smith failed to comply with a prior trial court order compelling him to produce certain documents. The record on appeal does not contain an order or ruling on McDaniel's October 16 motion nor a reporter's record from any hearing on the motion. Generally, as a prerequisite to presenting a complaint for appellate review, the record must show the party made a timely request, motion or objection sufficient to make the trial court aware of the complaint and the trial court ruled or refused to rule on the request, motion, or objection. See id.; see also Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (party aware of possible discovery abuse must move for sanctions and obtain ruling before trial). Because McDaniel failed to obtain a ruling on his sanctions motion, his complaint that the trial court abused its discretion by refusing to sanction Smith was not preserved for appellate review. See id.
Although McDaniel filed an earlier motion for sanctions for failure to provide discovery, it appears that the trial court treated the motion as a motion to compel discovery, ordering Smith to produce certain documents or provide a sworn statement that the documents requested were unavailable or did not exist. It does not appear that McDaniel is complaining about the trial court's ruling on this earlier motion for sanctions. McDaniel presents no legal argument or legal authority to support the contention that the trial court abused its discretion by ordering Smith to produce certain documents in the circumstances presented. --------
We affirm the trial court's judgment.
/David Evans/
DAVID EVANS
JUSTICE 150473F.P05
JUDGMENT
On Appeal from the County Court at Law No. 1, Hunt County, Texas
Trial Court Cause No. CC-1300047
Opinion delivered by Justice Evans, Justices Fillmore and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Jessy Dale Smith recover his costs of this appeal from appellant Lyndall D. McDaniel. Judgment entered this 4th day of April, 2016.