Affirmed as Modified and Memorandum Majority Opinion and Memorandum Concurring Opinion filed August 26, 2008.

 

In The

 

Fourteenth Court of Appeals

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NO. 14-07-00491-CV

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SAMUEL MAYO, Appellant

 

V.

 

SUEMAUR EXPLORATION & PRODUCTION LLC and WILFRED L. PELTIER, Appellees

 

 

On Appeal from the County Court at Law No. 4

Brazoria County, Texas

Trial Court Cause No. CI036971

 

 

M E M O R A N D U M   M A J O R I T Y  O P I N I O N

This is an appeal from the granting of two summary judgments in favor of appellees, Suemaur Exploration & Production LLC (ASuemaur@) and Wilfred L. Peltier.  In seven issues, pro se appellant, Samuel Mayo, argues the trial court erred in granting the two summary judgments.  We affirm as modified.

actual and Procedural Background

On October 12, 2004, appellant was driving down farm-to-market road 2004 when he collided with a bovine animal.  The collision caused damage to appellant=s car.  Additionally, appellant and his wife were taken to the hospital for an evaluation; however, the hospital found no injuries and released them both.  Exactly two years later, on October 12, 2006, appellant filed suit against appellees^[1] for negligently allowing cattle to escape and wander onto the road.

In April 2007, both appellees filed hybrid traditional and no-evidence motions for summary judgment.  In Peltier=s motion for summary judgment, he argued appellant=s deemed admissions precluded his suit,^[2] appellant=s negligence claim failed as a matter of law because Peltier had no legal duty to keep his cattle off a farm-to-market road, appellant could not recover the damages he sought as a matter of law, and there was no evidence Peltier breached a duty or that appellant incurred damages.  In Suemaur=s motion for summary judgment, it argued appellant could not recover the damages he sought as a matter of law, and there was no evidence of duty, breach, causation, or damages.  Appellant timely filed his response to Peltier=s motion for summary judgment on April 23, 2007; however, appellant did not file his response to Suemaur=s motion for summary judgment until May 9, 2007, one day before the summary judgment hearing.

Ultimately, the trial court granted Peltier=s and Suemaur=s motions for summary judgment without stating the grounds, and rendered judgment appellant take nothing.  This appeal followed.

Discussion

In seven issues, appellant argues the trial court erred in granting appellees= motions for summary judgment.  Appellant argues the trial court erred because (1) the summary judgment was based on the court=s own initiative instead of the parties= motions; (2) the summary judgment was based on grounds not presented in the motions; (3) the trial court did not give appellant adequate time for discovery; (4) the trial court did not give appellant an opportunity to cure any defects in his responses; (5) appellant=s evidence was proper; and (6) appellees failed to meet their burden of proof. 

A.      Standard of Review

In a traditional motion for summary judgment, the movant has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the nonmovant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the nonmovant's favor.  Id. at 548B49.  In addition, when reviewing a summary judgment, we cannot read between the lines, infer, or glean from the pleadings or proof any grounds for summary judgment other than those expressly set forth before the trial court in the motion itself.  Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.CHouston [14th Dist.] 2004, pet. denied).  A defendant who conclusively negates at least one of the essential elements of a plaintiff's cause of action is entitled to summary judgment on that claim.  IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).  Only when the defendant establishes his right to summary judgment does the burden shift to the plaintiff to come forward with competent, controverting evidence raising a genuine issue of material fact.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).          In a no-evidence motion for summary judgment, the movant must specifically state the elements as to which there is no evidence.  Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 473B74 (Tex. App.CHouston [14th Dist.] 2006, no pet.).  The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact.  Tex. R. Civ. P. 166a(i).  However, the nonmovant is A>not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.=@ Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (quoting Tex. R. Civ. P. 166a cmt. (Vernon 1997)).

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.  Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex. App.CHouston [14th Dist.] 2007, no pet.).  We review the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.  City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).  We sustain a no-evidence summary judgment if (1) there is a complete absence of proof of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Walker, 203 S.W.3d at 474.  Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak so as to do no more than create a mere surmise or suspicion of its existence and, in legal effect, is no evidence.  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).  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 as to the existence of the vital fact.  Id.

We review a trial court's summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  When a party moves for summary judgment on both traditional and no-evidence grounds and the trial court does not specify which it granted, we can uphold the summary judgment on either ground.  See Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). 

B.      Did the Trial Court Issue the Summary Judgments on its Own Initiative?

In his first issue, appellant cites Daniels v. Daniels and argues summary judgment was improper because the trial court did not have the authority to grant summary judgment on its own initiative.  45 S.W.3d 278, 282 (Tex. App.CCorpus Christi 2001, no pet.) (holding a trial court may not grant a motion for summary judgment in a case where no motion for summary judgment was ever filed).  In this case, however, the trial court did not grant the motions for summary judgment on its own initiative.  Both Peltier and Suemaur properly filed motions for summary judgment, which the court granted. 

Within this same issue, appellant also argues summary judgment was improper because the trial court erred in dismissing the case with prejudice.  The relevant portion of Peltier=s judgment provides:

On this date, the Court considered Defendant=s Traditional and No-Evidence Motion for Summary Judgment, the responses thereto, and all arguments of the parties and is of the opinion that it should be GRANTED.

IT IS THEREFORE ORDERED that Plaintiff=s claims against Defendant Wilfred L. Peltier are hereby DISMISSED WITH PREJUDICE. 

The relevant portion of Suemaur=s judgment provides:

The Court, having considered said Motion and arguments of counsel, is of the opinion that said Motion is good and shall be GRANTED.  It is therefore,

ORDERED, ADJUDGED and DECREED, that the Defendant=s No-Evidence Motion for Summary Judgment is GRANTED.

. . . .

ORDERED, ADJUDGED, and DECREED that this cause of action is hereby dismissed with prejudice as to Defendant SUEMAUR EXPLORATION & PRODUCTION LLC, with each party bearing its own costs of court and expenses. 

Appellant cites Martinez v. Southern Pacific Transportation Co. to support his contention the trial court should dispose of a party=s summary judgment claim on the merits, not by dismissal.  951 S.W.2d 824, 830 (Tex. App.CSan Antonio 1997, no writ).  However, appellant fails to recognize the ultimate holding in Martinez.  While the Martinez court stated the trial court should not have ordered the dismissal, it determined the judgment should merely be Amodified to delete the order of dismissal with prejudice@ and affirmed the trial court=s judgment as modified.  Id.  The judgment in the instant case is similar to that in Martinez.  We agree with the reasoning in Martinez and hold the judgments in this case should be modified to delete the dismissal language.  See id.; P&S Corp. v. Park, No. 14-05-00115-CV, 2006 WL 1168804, at *4 (Tex. App.CHouston [14th Dist.] May 4, 2006, no pet.) (mem. op., not designated for publication) (agreeing with the reasoning in Martinez and holding the judgment should be modified to delete the dismissal language).  Accordingly, we overrule appellant=s first issue subject to the specified modifications.   

C.      Did the Trial Court Grant the Summary Judgments on Grounds not Presented in the Motions?

In his second issue, appellant argues summary judgment was improper because the trial court granted appellees= summary judgments on grounds not presented in the motions.  Appellant states the trial court did not have any grounds to grant the summary judgments based on a lack of evidence of damages because appellant provided a plethora of evidence proving damages.  However, appellant fails to recognize both Peltier and Suemaur included several different possible grounds for summary judgment in their motions.  In Peltier=s motion for summary judgment, he argued appellant=s negligence claim failed as a matter of law because Peltier had no legal duty to keep his cattle off a farm-to-market road, appellant could not recover the damages he sought as a matter of law, and there was no evidence Peltier breached a duty or that appellant incurred damages.  In Suemaur=s motion for summary judgment, it argued appellant could not recover the damages he sought as a matter of law, and there was no evidence of duty, breach, causation, or damages.  As discussed in section F below, the trial court properly granted the summary judgments based on at least one of the grounds asserted in both Peltier=s and Suemaur=s motions for summary judgment; therefore, appellant=s argument fails.  We overrule appellant=s second issue.

D.      Did the Trial Court Give Appellant Adequate Time for Discovery?

In his third issue, appellant argues summary judgment was improper because appellant was not allowed an adequate time for discovery.  Appellant asserts this argument for the first time on appeal.  When a party contends it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.  Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Triad Home Renovators, Inc. v. Dickey, 15 S.W.3d 142, 145 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  The summary judgment record does not reflect appellant took either of these steps; thus, appellant waived this argument.  We overrule appellant=s third issue.

E.      Did the Trial Court Err in Not Allowing Appellant an Opportunity to Cure Any Defects in Appellant=s Summary Judgment Responses?

In his fourth issue, appellant argues summary judgment was improper because the trial court should have given appellant an opportunity to amend his responses.  First, appellant argues that before a trial court can grant a Ano cause of action@ summary judgment, the trial court must give the parties an adequate opportunity to plead a viable cause of action.  See Friesenhahn v. Ryan, 960 S.W.2d 656, 659 (Tex. 1998).  While appellant correctly states the law, appellant=s original petition sufficiently stated a cause of action, and the trial court did not grant no-cause-of-action summary judgments.  Instead, the trial court granted appellees= motions for summary judgment based on negligence, which was the cause of action appellant pleaded.

Appellant also argues he should have been allowed an opportunity to amend or correct his summary judgment responses pursuant to Texas Rule of Civil Procedure 166a(f), which provides A[d]efects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.@  Tex. R. Civ. P. 166a(f).  Appellant, however, failed to preserve this issue for our review.  When a summary judgment movant objects to summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to request relief under rule 166a(f), including a continuance or the opportunity to cure any formal defects in the nonmovant's summary judgment evidence.  Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex. App.CFort Worth 2004, no pet.).  The record in this case reflects appellant neither requested an opportunity to cure the alleged defects nor moved for a continuance.  By not taking any action in the trial court to indicate his desire to correct the alleged defects in his summary judgment evidence, appellant failed to preserve this issue for our review.  See id.; Flanagan v. Martin, 880 S.W.2d 863, 866 (Tex. App.CWaco 1994, writ dism'd w.o.j.).  Even though appellant is a pro se litigant, he must still comply with the applicable procedural rules.  Sedillo v. Campbell, 5 S.W.3d 824, 829 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  Appellant is held to the same standards that apply to licensed attorneys.  Id.  To allow different treatment for pro se litigants would provide them with an unfair advantage over litigants represented by counsel. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).  We overrule appellant=s fourth issue.

F.       Did the Trial Court Properly Grant the Motions for Summary Judgment ?

In his fifth, sixth, and seventh issues, appellant argues appellees failed to meet their

burden of proof and appellant presented sufficient evidence to avoid summary judgment.^[3]  We construe appellant=s last three issues as a challenge to whether there was sufficient evidence to grant appellees= motions for summary judgment.  Appellees both moved for summary judgment on traditional and no-evidence grounds.  The trial court=s order granting Suemaur=s summary judgment specifically states it granted Suemaur=s no-evidence motion for summary judgment; however, the trial court=s order granting Peltier=s summary judgment does not specify which one the trial court granted.  Thus, we will first review both motions for summary judgment on a no-evidence basis, and if necessary, address Peltier=s motion for summary judgment on a traditional basis as well.  See Taylor, 158 S.W.3d at 8 (stating when a party moves for summary judgment on both traditional and no-evidence grounds and the trial court does not specify which it granted, the appellate court can uphold the summary judgment on either ground).

In a no-evidence motion for summary judgment, if the movant=s motion specifically states the elements as to which there is no evidence, the burden of proof is on the nonmovant to produce competent summary judgment evidence raising a genuine issue of material fact on the challenged elements.  See Tex. R. Civ. P. 166a(i); Walker, 203 S.W.3d at 473B74.  If the nonmovant fails to produce proper evidence raising a genuine issue of material fact, the court must grant the motion for summary judgment.  Tex. R. Civ. P. 166a(i).

A negligence cause of action requires proof of (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach.  D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).  In Peltier=s no-evidence motion for summary judgment, he argued there was no evidence that he breached a duty or that appellant incurred damages.  In Suemaur=s no-evidence motion for summary judgment,  it argued there was no evidence of duty, breach, causation, or damages.  Thus, the burden shifted to appellant to respond to Peltier=s motion for summary judgment by demonstrating that more than a scintilla of evidence existed to raise a genuine issue of material fact as to the elements of breach and damages.  See Tex. R. Civ. P. 166a(i).  In addition, the burden shifted to appellant to respond to Suemaur=s motion for summary judgment by demonstrating that more than a scintilla of evidence existed to raise a genuine issue of material fact as to all four elements of negligence.  See id. 

Appellant filed a response to both Peltier=s motion and Suemaur=s motion; however, appellant attached only unauthenticated exhibits to both responses.  Unauthenticated or unsworn documents, or documents not supported by any affidavit, are not entitled to consideration as summary judgment evidence.  Medford v. Medford, 68 S.W.3d 242, 247 (Tex. App.CFort Worth 2002, rule 53.7(f) motion granted); Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.CSan Antonio 1997, writ denied).  Because none of the documents attached to appellant=s responses were authenticated, appellant did not properly present any evidence for consideration.^[4]  See Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451 (Tex. App.CDallas 2002, no pet.) (holding a complete absence of authentication is a defect of substance that is not waived by a party=s failure to object and may be urged for the first time on appeal, and distinguishing a complete absence of authentication from a situation in which a party attempts to authenticate but does so improperly, which is a defect of form); see also Gudur v. Tex. Dep=t of Health, No. 03-03-00752-CV, 2005 WL 2673670, at *5 (Tex. App.CAustin Oct. 21, 2005, no pet.) (mem. op., not designated for publication) (citing Blanche and holding appellant failed to submit competent summary judgment evidence because he failed to authenticate his documents in any way, which was a defect in substance); Gillespie v. Wells Fargo Bank Minn., N.A., No. 01-03-00742-CV, 2004 WL 2966328, at * 2 (Tex. App.CHouston [1st Dist.] Dec. 23, 2004, rule 53.7(f) motion denied) (mem. op., not designated for publication) (citing Blanche for the proposition that a complete absence of authentication was a defect in substance; thus, appellant failed to present any evidence for consideration); Medford, 68 S.W.3d at 246 (holding a defect in substance cannot be waived by failing to object or obtain a written order, and the absence of proper authentication constitutes a substantive defect).  In response, appellant argues his evidence was sufficient because he was not required to file verified responses.  While appellant=s statement is correct, he fails to understand the distinction between verification and authentication.  Appellant was not required to verify his responses, but he was required to authenticate the evidence he attached to his responses.  See Medford, 68 S.W.3d at 247; Llopa, Inc., 956 S.W.2d at 87.  Furthermore, the statements appearing in appellant=s responses to the motions for summary judgment were not competent summary judgment proof.  See Hidalgo v. Sur. Savs. & Loan Ass'n, 462 S.W.2d 540, 545 (Tex. 1971) (A[W]e are convinced that orderly judicial administration will be better served in the long run if we refuse to regard pleadings, even if sworn, as summary judgment evidence.@); Nicholson v. Mem=l Hosp. Sys., 722 S.W.2d 746, 749 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d n.r.e.) (APleadings do not constitute summary judgment evidence.@). 

Accordingly, the trial court did not err in granting Peltier=s and Suemaur=s no-evidence motions for summary judgment because appellant failed to present any evidence that created a genuine issue of material fact.  See Tex. R. Civ. P. 166a(i).  Because we find the trial court properly granted both Peltier=s and Suemaur=s no-evidence motions for summary judgment, we need not examine Peltier=s traditional motion for summary judgment.  See Taylor, 158 S.W.3d at 8.  We overrule appellant=s fifth, sixth, and seventh issues.

 

 

Conclusion

Having overruled all of appellant=s issues, we hold the trial court did not err in granting both Peltier=s and Suemaur=s motions for summary judgment.  However, we hold both judgments improperly include language dismissing appellant=s cause of action.  Therefore, we modify both judgments to delete the dismissal language and affirm the judgments as modified.

 

 

 

/s/      John S. Anderson

Justice

 

Judgment rendered and Memorandum Majority Opinion and Memorandum Concurring Opinion filed August 26, 2008.

Panel consists of Justices Yates, Anderson, and Brown. (J., Brown files concurring.)