irma-cooper-v-frozen-food-express-ind-sub-inc-f-f-e-transportation ( 2006 )

                                COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-05-073-CV  

IRMA COOPER                                                                    APPELLANT

                                                   V.

FROZEN FOOD EXPRESS IND.,                                                APPELLEES

INC.; FROZEN FOOD EXPRESS

INDUSTRIES & SUBSID., INC.;

STONEY M. (MIT) STUBBS, JR.,

REGISTERED AGENT, PRESIDENT/CEO,

BRD. DIRECTOR; RANDY MITCHEN,

MANAGER RISK MANAGEMENT INS./

FFEX INC.; JIM RAY, SR., CLAIMS

EXMR., RISK MANAGEMENT INS./

FFEX INC.; AND RISK MANAGEMENT

INSURANCE

                                              ------------

           FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

                                              ------------

                                MEMORANDUM OPINION^[1]

                                              ------------

Irma Cooper, acting pro se, filed a personal injury suit on February 12, 2004.  She amended her petition several times, with the last one filed on August 17, 2004.  Although she mistakenly initially filed suit against John Greene, whom she believed was representing Appellees, the trial court later dismissed him from the suit, and Cooper added Appellees as defendants.  It is unclear when Cooper named each Appellee as a defendant in the suit, but her Second Amended Original Petition, filed August 17, 2004, named all of the Appellees as defendants.  Cooper filed a motion for partial summary judgment on June 21, 2004, and amended this motion on August 17, 2004.

Appellee Randy Mitchen filed an original answer on August 27, 2004. Appellees Frozen Food Express Ind., Inc. (FFE) and Frozen Food Express Industries & Subsid. Inc. (FFEX) filed original answers on August 31, 2004.  Appellee Jim Ray filed an original answer on October 15, 2004. FFE and Ray amended their answers on November 5, 2005.  The original answers of Appellees Stoney M. (Mit) Stubbs and Risk Management Insurance are not included in the appellate record, but the record does show that they amended their answers on November 11, 2004.

On October 18, 2004, Cooper filed a motion for default judgment against Jim Ray, as A[a]cting [a]gent for Risk Management [Insurance],@ alleging that he failed to timely file an answer.

On November 3, 2004, Appellees filed a no-evidence motion for summary judgment. The trial court held a hearing on the motion on November 29, 2004, and continued the hearing to December 16, 2004, to allow Cooper to file a response.  On December 3, 2004, Cooper filed a no-evidence motion for summary judgment.  The court had a hearing on Appellees= motion on December 16, 2004.

On December 22, 2004, the trial court judge sent a letter to the parties indicating that he was granting Appellees= no-evidence motion for summary judgment. On December 30, 2004, Cooper filed a motion to vacate the judgment and other related motions.  The trial court judge executed an order granting Appellees= no-evidence motion for summary judgment on January 18, 2005.

On February 8, 2005, Cooper again filed a motion for default judgment, apparently against all Appellees.  At a hearing that same day, the trial court denied her previously filed motion to vacate the summary judgment.  The trial court executed an order denying the motion to vacate the judgment and related motions on February 10, 2005.  The trial court never expressly ruled on Cooper=s motions for default judgment.  Cooper appealed.

In eight points on appeal, Cooper argues that the trial court erred and abused its discretion by making various rulings.  Because we hold that the trial court did not err or abuse its discretion, we affirm the trial court=s judgment. In her second point and part of her first, Cooper argues that the trial court erred by allowing Appellees to file Alate@ original answers without written leave of court and that Appellees improperly failed to seek such leave.  From our review of the record, it appears that the last of the answers was filed on October 15, 2005.  Cooper argues that these Alate-filed@ answers violate rules 122 and 123 of the Texas Rules of Civil Procedure.  However, these rules are irrelevant to the resolution of this issue.

Rule 239, AJudgment by Default,@ provides,

Upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed an answer, and provided that the citation with the officer=s return thereon shall have been on file with the clerk for the length of time required by Rule 107.^[2]

This rule specifically provides that the plaintiff may take judgment by default pursuant to this rule only if the defendant has not previously filed an answer.^[3] As a general rule, if an answer is filed after the answer date, but before the trial court renders the default judgment, it is error for the court to render a default judgment.^[4]

Our review of the record shows that Appellees filed their answers before Cooper filed the first motion for default judgment.  Moreover, her first motion for default judgment appears to involve only Jim Ray.  The second motion was not filed until February 8, 2005, several weeks after the trial court signed the motion granting Appellees= no-evidence motion for summary judgment.  Cooper does not appear to allege that she was somehow entitled to a post-answer default judgment.  We overrule her second point and the part of her first point complaining about the late answers.

In her sixth point, Cooper argues that the trial court erred when it failed to acknowledge her motions for default judgment.  Our review of the record shows that the trial court judge, on at least one occasion, stated his reasoning for declining to rule on the motions for default judgment:  A[I]n looking at the file, there is an answer filed by Mr. Ray on October 15th.  You filed your motion for judgment by default on October 18th . . . .  [T]here was already an answer filed, so there=s no reason to set your motion for default at that point in time.@  Because Cooper was not entitled to a default judgment, she could not have been harmed by the trial court=s failure to rule.^[5]  We overrule her sixth point.      In her fourth point, Cooper argues that Athe trial court abused its discretion by overruling [her] motion to vacate [the] judgment in that it was so contrary to the great weight and preponderance of [the] evidence as to be manifestly unjust.@  In the discussion of her point in her brief, however, she argues that the trial court abused its discretion Aeven when errors/fraudulent filings were revealed to the Court.@

Cooper filed several documents contesting the motion for summary judgment and the resulting summary judgment.  Her AMotion to Vacate Summary Judgment@ states that she filed an objection to summary judgment Abased on >error= [i]n [the trial court=s] oversight of [her] filed Response/Answer to Motion for Non Evidence Summary Judgment filed by >non-defendant[,=] driver [of the vehicle causing Cooper=s injuries, Pierre] Thibault^[6] by opposing Legal Counsel filed on 12-10-04 by Plaintiff.@  Her AAnswer to Motion Summary Judgment No Evidence,@ filed on December 12, 2004, states that it is the Aanswer to Driver Thibault=s Motion for No Evidence Summary Judgment,@ and continues:  AAlthough [she] proved in hearing held on 11-29-04 that driver Thibault was [n]ot a named [d]efendant in this [c]ivil [a]ction and never has been . . . [she] still is [c]ompliant with [the] judge[>s] request to file answer.@ She states that she has a new motion for summary judgment Anow pending@ and requests that A[o]pposing counsel=s >[e]rroneous= motion be striken and [her] Motion for No Evidence Summary judgment be [granted].@  Her AObjection to Form Judgment/Order@ states that the motion for summary judgment Awas sought by only Pierre Thibault,@ a Anon-defendant,@ but that the trial court=s judgment was Adrawn on all defendants.@ Her AObjection to Summary Judgment@ states that she filed a response to Appellees= motion for summary judgment, that she filed a motion to strike the motion for summary judgment, that she filed a motion for contempt against opposing legal counsel, and that she had previously filed exhibits regarding Thibault (such as an accident report). It appears that she is claiming that only Thibault, filed a motion for summary judgment and that the trial court erred by granting summary judgment in Appellees= favor.

However, although Thibault filed a no-evidence motion for summary judgment, Appellees also filed a no-evidence for summary judgment (and this motion does not include nonparty Thibault).  Also, the trial judge=s letter indicating that the motion was granted requested one of Appellees= attorneys to submit an appropriate order, and the order that the judge signed on January 18, 2005, simply stated that Appellees= no-evidence motion for summary judgment was Awell-taken,@ that Cooper should take nothing, and that the motion was granted.  In addition, despite the allegation in her brief that errors and fraudulent filings were revealed to the court, she presents no evidence of any errors or fraudulent filings.  Nothing in the discussion of her point challenges the substantive merits of the summary judgment or the lack of evidence supporting it.  We overrule Cooper=s fourth point.

In her seventh point, Cooper argues that the trial court abused its discretion in holding her (acting pro se and in forma pauperis) to the same standards as a licensed attorney.  However, a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure.^[7]  We overrule Cooper=s seventh point.

In her eighth point and part of her first point, Cooper alleges that the trial court abused its discretion by violating her Seventh Amendment right to trial.  The Seventh Amendment to the United States Constitution provides that A[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.@^[8]  She alleges in her brief that the trial court denied her constitutional right to trial by canceling the trial date and denying her the right to represent herself at a jury trial.

Cooper presents no evidence of how or why her constitutional rights were violated. However, case law holds that the summary judgment procedureCa widely accepted practiceCdoes not violate constitutional rights.^[9]  The right to a jury trial in civil cases is not absolute.^[10]  The summary judgment process provides a method of terminating a case when only questions of law are involved and there are no genuine issues of fact.^[11]  The process may not be used to deprive litigants of a jury trial where material questions of fact exist.^[12]  However, if there is nothing to submit to a jury, then the grant of summary judgment cannot violate a party=s constitutional right to a jury trial.^[13]  Accordingly, we overrule Cooper=s eighth point and that part of her first point complaining about her Seventh Amendment rights.

In the remainder of her first point, Cooper argues that the trial court erred by rescheduling the previously set trial date to April 18, 2005.  No trial was necessary in this case; therefore, this point is moot.^[14]  We overrule Cooper=s first point.

In her third point, Cooper argues that the trial court abused its discretion by allowing Appellees to file a Afraudulent motion@ and by taking no action on her no-evidence motion for summary judgment.  She states in her brief that the court failed Ato take action on [the] fraudulent motion filedCThibault[>s] no[-]evidence summary judgmentCknowingly and fraudulently filed by Appellees[=] legal counsel.  [The] [t]rial court closed its eyes to this fact even when [Cooper] filed to strike [the] no[-]evidence summary judgment and contempt motion on 12-03-04.@  She also asserts that A[o]pposing legal counsel filed bogus filings for non-defendants (driver Pierre Thibault).@  Although Thibault=s answer and no-evidence motion for summary judgment were filed by the same attorney representing Appellees, Cooper points to no evidence in the record indicating how counsel=s representation of both Thibault and Appellees was fraudulent or would render Thibault=s or Appellees= filings fraudulent.  She provided no evidence of any fraudulent action by anybody and we find nothing in the record to indicate any fraud by Appellees in filing the no-evidence summary judgment motion.

Cooper filed her no-evidence motion for summary judgment on December 3, 2004, after the hearing on Appellees= motion for summary judgment.  Following this filing, on January 18, 2005, the trial court granted Appellees= motion for summary judgment.  The order stated that Cooper take nothing and that Appellees be discharged from the suit.  Therefore, it appears that the trial court implicitly overruled Cooper=s motion.^[15]  We overrule her third point.    Cooper=s brief contains two different statements of her fifth point.  On one page, her fifth point repeats her argument that Appellees failed to seek leave of court to file their late original answerCan argument that we have already addressed.  On another page, her fifth point seems to present an argument that an adequate time for discovery had not passed and that opposing counsel Asubmit[ted] perjurious testimony in [the] hearing on 12-16-04@ indicating that the case was on the docket for dismissal due to want of prosecution.  She states that her copy of the motion to compel discovery, which she allegedly filed, Awas taken in an in-home break-in.@  However, she presents no evidence that the case was not on the docket for dismissal, and the transaction sheet (showing all transactions that occurred in her case as recorded by the trial court=s clerk=s office) she presents in her brief contains an entry that a letter setting the hearing for dismissal for want of prosecution was set for November 3, 2004.  Also, she presents no evidence of how, even if the case was not on the docket for dismissal, opposing counsel=s allegedly false statement affected the outcome of the case.  Opposing counsel continued his discussion with statements and arguments regarding the absence of Cooper=s evidence in the case.

Also, Cooper presents no evidence that the time for discovery was in any way inadequate. She filed the case on  February 12, 2004, and her last live petition in the appellate record is the Second Amended Petition filed on August 17, 2004. The trial court held the hearing on Appellees= motion for summary judgment on November 29, 2004, and continued it to December 15, 2004, to allow Cooper time to file appropriate documents in response.  She prevents no evidence of this time being inadequate or of any attempts that she made to obtain discovery.  Moreover, A[w]hen a party contends that 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.@^[16]  Cooper did neither.  We overrule her fifth point.

Because we have overruled all of Cooper=s points, we affirm the trial court=s judgment.

LEE ANN DAUPHINOT

JUSTICE

PANEL A:   CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED:  August 17, 2006

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^[1]See Tex. R. App. P. 47.4.

^[2]Tex. R. Civ. P. 239 (emphasis added).

^[3]Id.; Davis v. Jeffries, 764 S.W.2d 559, 560 (Tex. 1989).

^[4]Davis, 764 S.W.2d at 560.

^[5]See Tex. R. App. P. 44.1(a).

^[6]Thibault was later dismissed from the case.

^[7]Strange v. Continental Cas. Co., 126 S.W.3d 676, 677‑78 (Tex. App.CDallas 2004, pet. denied), cert. denied, 543 U.S. 1076 (2005); Clemens v. Allen, 47 S.W.3d 26, 28 (Tex. App.CAmarillo 2000, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184‑85 (Tex. 1978)); see also Tarrant (Tex.) Civ. Ct. Loc. R. 1.02(b); Wallace ex rel. Wallace v. Dimon, No. 02‑05‑0197‑CV, 2006 WL 744295, at *1 (Tex. App.CFort Worth 2006, no pet. h.) (mem. op.).

^[8]U.S. Const. amend. VII.

^[9]See, e.g., Bliss v. NRG Industries, 162 S.W.3d 434, 437 (Tex. App.CDallas 2005, pet. denied).

^[10]Id. (citing Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968)); Martin v. Commercial Metals Co., 138 S.W.3d 619, 626 (Tex. App.CDallas 2004, no pet.).

^[11]Bliss, 162 S.W.3d at 437 (citing Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex. App.CTexarkana 2002, pet. denied)).

^[12]Id.

^[13]Id. (citing Lattrell, 79 S.W.3d at 150; Martin, 138 S.W.3d at 627).

^[14]See Black=s Law Dictionary 1029 (8th ed. 2004); see also Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000) (defining mootness); Davis v. Burnam, 137 S.W.3d 325, 332 (Tex. App.CAustin 2004, no pet.) (same).

^[15]See, e.g., Zurita v. Lombana, No. 01‑01‑01040‑CV, 2003 WL 21027140, at *2 n.4 (Tex. App.CHouston [1st Dist.] May 8, 2003, pet. denied) (mem. op.).

^[16]Shields v. Delta Lake Irr. Dist., No. 13‑01‑622‑CV, 2006 WL 1280863, at *14 (Tex. App.CCorpus Christi May 11, 2006, pet. filed) (mem. op.) (citing Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996)).