Opinion
No. 14-10-00511-CV
Opinion filed July 12, 2011.
On Appeal from the 270th District Court, Harris County, Texas, Trial Court Cause No. 2009-16913.
Panel consists of Justices ANDERSON, SEYMORE, and McCALLY.
MEMORANDUM OPINION
In three issues, appellant, Philip R. Thornton, contends the trial court erred by granting Oprona, Inc., d/b/a Rosen USA's ("Rosen") no-evidence motion for summary judgment. We affirm.
I. BACKGROUND
In March 2009, Thornton filed a premises-liability suit against Rosen, alleging he was injured as a result of Rosen's negligence. On October 15, 2009, the trial court granted a motion to withdraw filed by Thornton's attorney, premised on Thornton's desire "to retain other counsel to represent him in this matter or to represent himself pro se." During February 2010, Rosen and Thornton agreed to a continuance based in part on delays in discovery necessitated by Thornton's attempt to retain new counsel. However, Thornton failed to timely retain new counsel.
During March 2010, Rosen filed a no-evidence motion for summary judgment in which it asserted that there was no evidence regarding the duty, breach, and causation elements of Thornton's negligence claim. Rosen notified Thornton regarding the time and date for the summary-judgment hearing. However, Thornton did not file a pleading or evidence responsive to Rosen's motion prior to the hearing. Instead, Thornton appeared at the hearing and attempted to present responsive evidence. The trial court granted Rosen's motion for summary judgment.
Subsequently, Thornton filed a "Motion for Appeal of No-Evidence Summary Judgment" and attached documents. The record does not reflect that this motion was set for submission or hearing or otherwise brought to the trial court's attention. However, we have treated this motion as Thornton's notice of appeal. Thornton did not file a motion for new trial or otherwise request that the trial court set aside the judgment. On appeal, Thornton is represented by counsel.
II. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
In his first issue, Thornton contends the judgment should be set aside because his failure to timely respond to Rosen's no-evidence motion for summary judgment was due to mistake or accident. In his second issue, Thornton contends it was improper for Rosen to file a no-evidence motion because it had notice of the existence of evidence supporting Thornton's claims. In his third issue, Thornton contends the trial court erred by granting Rosen's motion because it was conclusory.
A. Standard of Review
After adequate time for discovery, a party may move for summary judgment on the ground 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. Tex. R. Civ. P. 166a(i); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The movant must state the elements on which there is no evidence. Tex. R. Civ. P. 166a(i). Unless the respondent produces summary-judgment evidence raising a genuine issue of material fact on the challenged element, the trial court must grant the motion. Id.; Urena, 162 S.W.3d at 550. To defeat a no-evidence motion for summary judgment, the nonmovant need not marshal his evidence, but must point out in his response evidence raising a genuine issue of fact as to the challenged element. See Tex. R. Civ. P. 166a(i) cmt. 1997; San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 330 (Tex. App.-Houston [14th Dist.] 2005, no pet.). The non-movant's response must be filed no later than seven days prior to the day of the hearing. Tex. R. Civ. P. 166a(c).
B. Summary Judgment Movant's Notice of Evidence Regarding Challenged Elements
We begin with Thornton's second issue, in which he contends it was improper for Rosen to file a no-evidence motion because it had notice that evidence existed supporting Thornton's negligence claim. A no-evidence motion operates to place the burden on the non-movant to present evidence raising a genuine issue of material fact. Kane v. Cameron Int'l. Corp., 331 S.W.3d 145, 147 (Tex. App.-Houston [14th Dist.] 2011, no pet.). Thornton cites no authority for the contention that a movant's notice of the existence of evidence supporting the non-movant's claim precludes the movant from filing a no-evidence motion for summary judgment, nor is this proposition supported by the plain language of Rule 166a(i). We overrule Thornton's second issue.
C. Sufficiency of No-Evidence Motion for Summary Judgment
In his third issue, Thornton argues that Rosen's no-evidence motion was conclusory. A no-evidence motion is not conclusory when the movant specifies the claims and elements unsupported by the evidence. See Alaniz v. Rebello Food Beverage, L.L.C., 165 S.W.3d 7, 11-12 (Tex. App.-Houston [14th Dist.] 2005, no pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 924 n. 12 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). We conclude Rosen's motion was not conclusory because Rosen specified that there was no evidence supporting the duty, breach, and causation elements of Thornton's negligence claim. Accordingly, we overrule Thornton's third issue.
D. Failure to Respond to No-Evidence Motion for Summary Judgment
In his first issue, Thornton argues the judgment should be set aside based on equity because his failure to respond timely to Rosen's no-evidence motion was due to mistake or accident. Thornton relies on Medina v. Western Waste Industries, in which we applied the equitable Craddock standard when the non-movant failed to respond to a motion for summary judgment. 959 S.W.2d 328, 329-31 (Tex. App.-Houston [14th Dist.] 1997, pet. denied) (holding "that where the failure to respond to a motion for summary judgment was (1) not intentional or the result of conscious indifference, but the result of an accident or mistake, a new trial should be granted, provided that (2) the non-movant's motion for new trial alleges facts and contains proof sufficient to raise a material question of fact, and (3) demonstrates that the granting thereof will occasion no delay or otherwise work an injury to the plaintiff"), disapproved of by Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 683-84 (Tex. 2002); see also Craddock v. Sunshine Bus Lines, 134 Tex. 388, 392, 133 S.W.2d 124, 126 (1939) (approving equitable rule for setting aside default judgments when defendant fails to answer). Even if Medina were applicable, Thornton could not avail himself of the equities espoused in Medina because he did not file a motion for new trial. Nevertheless, Medina was expressly overruled by the supreme court in Carpenter, holding that the Craddock standard does not apply outside of the default-judgment context when a party has other procedural avenues available under the Texas Rules of Civil Procedure. Carpenter, 98 S.W.3d at 686. The record does not reflect that Thornton attempted to remedy his failure to respond to Rosen's motion by moving for a continuance or seeking leave to file evidence after the deadline. Because Thornton failed to take advantage of any of the procedural remedies available to him, the Craddock standard does not apply. Id. Therefore, Thornton's first issue is overruled.
We recognize that Thornton was representing himself at the time Rosen filed its no-evidence motion. However, a party who chooses to represent himself is held to the same standards as a licensed attorney and must comply with the applicable laws and rules of procedure. See Brown v. Tex. Emp't Comm'n, 801 S.W.2d 5, 8 (Tex. App.-Houston [14th Dist.] 1990, writ denied).
We affirm the trial court's judgment.