Raymond Chizer v. Tommy Bradshaw ( 2005 )

Affirmed and Memorandum Opinion filed February 15, 2005

Affirmed and Memorandum Opinion filed February 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00526-CV

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RAYMOND CHIZER, Appellant

V.

TOMMY BRADSHAW, Appellee

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On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Cause No. 18000*JG01

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M E M O R A N D U M   O P I N I O N

Appellant Raymond Chizer appeals the trial court=s judgment, asserting that the trial court erred in denying Chizer=s motion for summary judgment.  However, in its judgment, the trial court only granted the motion for summary judgment filed by appellee Tommy Bradshaw.  Our record contains no order of the trial court denying Chizer=s motion; therefore, Chizer has not preserved error as to the issue he asserts on appeal. 

Even if the trial court had denied Chizer=s motion, that would not alter this court=s disposition.  Chizer=s motion sought only a partial summary judgment. Therefore, even if, contrary to the record before us, the trial court had denied Chizer=s motion and granted Bradshaw=s motion, the trial court=s denial of Chizer=s motion for partial summary judgment still would not be before this court. See CU Lloyd=s of Texas v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998) (stating that, before a court of appeals may review an order denying a cross-motion for summary judgment not covered by an interlocutory appeal statute, both parties must have sought final judgment in their cross-motions for summary judgment, unless an exception applies that is not applicable to the instant case).  The issues raised by Chizer=s motion and Bradshaw=s motion were different, and, on appeal, Chizer has not asserted that the trial court erred in granting Bradshaw=s motion.  Chizer has not asserted any legal argument regarding the merits of Bradshaw=s motion, which was based largely on deemed admissions. Accordingly, we overrule Chizer=s issue on appeal and affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed February 15, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.