in Re Estate of D.H. Braman, Jr. ( 2012 )

NUMBER 13-11-00021-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE ESTATE OF D.H. BRAMAN JR., DECEASED
On appeal from the 267th District Court
of Refugio County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
This is an appeal from a no-evidence summary judgment granted against
appellant Vincent Lazaro.1 See TEX. R. CIV. P. 166a. By one issue, Lazaro contends
that the trial court erred in granting appellee Danielle Braman’s no-evidence motion for
1
Lazaro is a licensed attorney and elected to represent himself pro se at the trial court level as well
on appeal.
summary judgment. We conclude that the trial court did not err and affirm.
I. BACKGROUND2
Lazaro provided legal representation to Braman in the underlying probate matter
which has since settled, and the merits of which are not currently before this court.
Instead, this case deals with the purported hybrid attorney-client hourly/contingency-fee
agreement entered into by Lazaro and Braman for representation during the probate suit.
At the conclusion of the probate proceedings, Braman filed a declaratory action under the
Uniform Declaratory Judgments Act, in an effort to determine what her rights and
obligations were, if any, under the employment agreement with Lazaro. See TEX. CIV.
PRAC. & REM. CODE ANN. § 37.001–.011 (West 2008). Lazaro was paid $37,500.00 in
attorney’s fees at the conclusion of the probate proceedings, but subsequently demanded
more money from Braman pursuant to the attorney-client agreement.
Braman attempted to obtain written discovery from Lazaro during the declaratory
action, but was unsuccessful.3 Following nearly a year of unresponsive discovery and
unproductive case activity, Braman filed a motion for no-evidence summary judgment
and requested the trial court to declare that Braman owed nothing more than the
$37,500 already paid to Lazaro from the probate representation.
The trial court granted Braman’s no-evidence summary judgment and found that:
(1) Adequate time for discovery had passed;
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
3
Discovery issues during the declaratory action included two successful motions to compel and a
motion for sanctions brought by Braman against Lazaro.
2
(2) Braman’s motion for no-evidence summary judgment was filed on October 21,
2010 with certificate of service on October 20, 2010, which was more than the
requisite twenty-one days before the hearing on November 18, 2010, see TEX.
R. CIV. P. 166a(c);
(3) Lazaro failed to file a response and summary judgment evidence at least
seven days before the hearing and did not obtain leave of court to file a late
response, see id.
(4) Lazaro failed to show good cause for filing a late amended response on the
day of the hearing; and
(5) No evidence of a valid and enforceable written contingency fee contract,
hourly contract, or any other outstanding attorney fees claimed to be owed
was presented, making Braman owe nothing further to Lazaro.
Lazaro appeals the ruling.
II. APPLICABLE LAW AND STANDARD OF REVIEW
“A no-evidence summary judgment is equivalent to a pretrial directed verdict and,
in reviewing the granting of a no-evidence summary judgment, this Court applies the
same legal sufficiency standard as applied in reviewing directed verdicts.” Zapata v.
Children’s Clinic, 997 S.W.2d 745, 747 (Tex. App—Corpus Christi 1999, pet. denied)
(citing Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet.
denied)). Texas Rule of Civil Procedure 166a provides the following procedure for
no-evidence motions:
After adequate time for discovery, a party without presenting summary
judgment evidence may move for summary judgment on the ground that
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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.
The motion must state the elements as to which there is no evidence. The
court must grant the motion unless the respondent produces summary
judgment evidence raising a genuine issue of material fact.
See TEX. R. CIV. P. 166a(i).
Accordingly, we review the evidence presented in the light most favorable to the
non-movant against whom the no-evidence summary judgment was rendered, indulging
every reasonable inference and resolving any doubts against the motion. See Sudan v.
Sudan, 199 S.W.3d 291, 292 (Tex. 2006); Zapata, 997 S.W.2d at 747. A no-evidence
point will be sustained on review when the record reveals “(a) a complete absence of
evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove
a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the
opposite of the vital fact.” City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)
(quoting Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38
TEX. L. REV. 361, 362–63 (1960)).
III. DISCUSSION
In his sole issue, Lazaro argues that the trial court erred in granting Braman’s
no-evidence motion.
As a threshold matter, we must determine whether Lazaro timely filed a response
to Braman’s no-evidence motion for summary judgment. In his brief, Lazaro argues
that he filed a “Response to Plaintiff’s No-Evidence Motion for Summary Judgment” with
the Refugio County District Clerk via first-class mail on November 11, 2010. This
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argument is unsupported by the record.4 Our review of the clerk’s record as well as the
civil docket sheet does not indicate that such a filing was made or received by the clerk.
Accordingly, Lazaro’s response was not properly before the trial court to consider in
making its ruling. See generally Landers v. State Farm Lloyds, 257 S.W.3d 740, 744
(Tex. App.—Houston [1st Dist.] 2008, no pet.) (noting that a trial court did not err in not
considering an untimely response to a no-evidence motion for summary judgment that
was unsupported by the record).
Rule 166a states that a respondent may not file a written response to a movant’s
motion for summary judgment later than seven days prior to the day of the hearing,
except on leave of court. See TEX. R. CIV. P. 166a. The only responsive pleading in
the record is “Defendant’s First Amended Response to Plaintiff’s No-Evidence Motion for
Summary Judgment,” filed November 18, 2010—the day of the hearing—without a
corresponding motion or order for leave of court to file it. Therefore, because Lazaro’s
amended response was filed less than seven days prior to the day of the hearing, without
leave of court, we conclude it was untimely and also not properly before the trial court at
the hearing. See Atchley v. NCNB Tex. Nat’l Bank, 795 S.W.2d 336, 337 (Tex.
App.—Beaumont 1990, writ denied). Accordingly, the trial court did not err in granting
4
Lazaro attached an affidavit to his brief signed by his legal assistant, Virginia M. Martinez,
indicating that copies of his response to Braman’s no-evidence motion for summary judgment were sent to
opposing counsel as well as to the Refugio County District Clerk’s office. However, we will not consider
this affidavit because attachments to a brief that are not formally included in the record cannot be
considered on appeal. See Tex. Dep’t. of Transp. v. Perches, 339 S.W.3d 241, 254 (Tex. App.—Corpus
Christi 2011, no pet.); Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.); Till v.
Thomas, 10 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 1999).
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Braman’s motion for no-evidence summary judgment without considering the untimely
first-amended response. See Landers, 257 S.W.3d at 744.
Lazaro requests, in the alternative, that if we conclude that his amended response
was untimely and not properly before the trial court, we should grant his motion for leave
to file a late summary judgment response because it was “impossible” for him to request
one from the trial court since he was operating on the belief that his initial response was
properly filed. We are not persuaded by this reasoning.5 Our review is limited to the
record—not the subjective beliefs of the parties. See TEX. R. CIV. P. 166a(c). The
record firmly establishes that Lazaro did not obtain leave from the trial court to file his
untimely amended response. See TEX. R. CIV. P. 166a(c); Atchley, 795 S.W.2d at 337.
Finally, Lazaro argues that he has satisfied his burden to defeat Braman’s motion
for no-evidence summary judgment by proving the existence of a contract of
employment. We disagree. In a motion for no-evidence summary judgment, the
non-movant must produce summary judgment evidence which raises “a genuine issue of
material fact to defeat the summary judgment.” TEX. R. CIV. P. 166a(i); Ford Motor Co.
v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Here, Lazaro failed to meet his burden
because he did not offer any summary judgment evidence to raise a genuine issue of
material fact by producing more than a scintilla of evidence establishing the existence of
a challenged element. See Ford, 135 S.W.3d at 600. As discussed previously in this
opinion, Lazaro’s only responsive pleading to Braman’s motion for summary judgment
5
Lazaro’s reliance on Carpenter v. Cimarron Hydrocarbons Corp. is misguided because that
appeal involved review of the trial court’s denial of a non-movant’s motion for leave to file a late response to
a motion for summary judgment. 98 S.W.3d 682, 686–87 (Tex. 2002). Here, Lazaro did not file a motion
for leave, and thus no issue is preserved for our review. See TEX. R. APP. P. 33.1(a).
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was untimely and not properly before the trial court to consider in its ruling. See
Atchley, 795 S.W.2d at 337. Accordingly, we conclude that the trial court did not err in
its ruling. Lazaro’s sole issue is overruled. See Ford, 135 S.W.3d at 600; City of
Keller, 168 S.W.3d at 810 (holding that a no-evidence ruling must be sustained if “the
court is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact”).
IV. CONCLUSION
The trial court’s judgment is affirmed.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
26th day of July, 2012.
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