Augustus Jerome Mayes v. Charles O'Reilly ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00104-CV

Augustus Jerome Mayes,

                                                                                    Appellant

 v.

Charles O’Reilly,

                                                                                    Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court No. CAC-04-35566

MEMORANDUM  Opinion

            Augustus Jerome Mayes, a Texas inmate, sued Charles O’Reilly, an employee of the Texas Department of Criminal Justice, for breach of contract.  The trial court granted summary judgment in favor of O’Reilly.  We construe Mayes’s pro se appeal to assert that the trial court: (1) was not authorized to grant summary judgment; (2) improperly refused to grant a default judgment; and (3) failed to properly exercise the duties of his office.  We affirm.

SUMMARY JUDGMENT

Mayes argues that the trial court was not authorized to grant summary judgment because: (1) fact issues exist; and (2) both he and O’Reilly had filed a jury demand.[1] O’Reilly argues that because Mayes did not file a summary judgment response, his appeal is limited to whether O’Reilly’s motion is insufficient as a matter of law.

If the non-movant fails to respond to a summary judgment motion, he is “’limited on appeal to arguing the legal sufficiency of the grounds presented by the movant.’”  Maddox v. Cosper, 25 S.W.3d 767, 771 (Tex. App.—Waco 2000, no pet.)   (quoting McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993)).  He “may not contend on appeal that there is a disputed issue of material fact.”  Haynes v. City of Beaumont, 35 S.W.3d 166, 174 (Tex. App.—Texarkana 2000, no pet.).

Mayes refused to accept service of O’Reilly’s motion and did not file a response.  His appeal is limited to legal sufficiency grounds.  See Maddox, 25 S.W.3d at 771; see also Haynes, 35 S.W.3d at 174.  We will not consider whether fact issues exist that precluded the trial court from granting summary judgment.  See Haynes, 35 S.W.3d at 174-75.  Because Mayes has not raised the issue, we do not address whether O’Reilly’s motion is insufficient as a matter of law.  See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (an appellate court cannot address unassigned error); see also Cotton v. Cotton, 57 S.W.3d 506, 509 (Tex. App.—Waco 2001, no pet.) (same).

The trial court did not deprive Mayes of the right to a jury trial.  The “right to a jury trial in civil cases is not absolute.”  Bliss v. NRG Indus., 162 S.W.3d 434, 437 (Tex. App.—Dallas 2005, pet. denied); Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex. App.—Texarkana 2002, pet. denied).  “When a party cannot show a material fact issue, there is nothing to submit to a jury, and the grant of summary judgment to the opposing party does not violate the constitutional right to a jury trial.”  Lattrell, 79 S.W.3d at 150; see Bliss, 162 S.W.3d at 437.  Mayes cannot show that a material fact issue exists; the trial court properly granted O’Reilly’s summary judgment motion.  See Maddox, 25 S.W.3d at 771; see also Haynes, 35 S.W.3d at 174; Lattrell, 79 S.W.3d at 150; Bliss, 162 S.W.3d at 437.  We overrule Mayes’s summary judgment challenge.

DEFAULT JUDGMENT

Mayes challenges the trial court’s failure to grant any of his three motions for default judgment.  However, O’Reilly filed an original answer and general denial.  An “original denial shall be presumed to extend to all matters subsequently set up by the plaintiff.”  Tex. R. Civ. P. 92.  Mayes was not entitled to default judgment.  We overrule his challenge to the trial court’s failure to rule on his motions for default judgment.

EXERCISE OF JUDICIAL DUTIES

            Mayes contends that the trial court failed to properly exercise the duties of his office by holding a telephonic summary judgment hearing, refusing to grant default judgment, and colluding with the Attorney General’s Office.

“[A]n inmate does not have an absolute right to appear in person in every court proceeding.”  In the Interest of Z. L. T., 124 S.W.3d 163, 165 (Tex. 2003).  If the trial court determines that the “prisoner is not entitled to appear personally, then the court should permit him ‘to proceed by affidavit, deposition, telephone, or other effective means.’” In re Taylor, 39 S.W.3d 406, 412 (Tex. App.—Waco 2001, no pet.); Boulden v. Boulden, 133 S.W.3d 884, 886-87 (Tex. App.—Dallas 2004, no pet.).  The record does not show that Mayes objected to the telephonic hearing.  Nor has Mayes presented any reasons justifying his personal appearance in the trial court.  The trial court’s decision to hold a telephonic hearing was not improper.

Neither does the record contain any evidence of impropriety by either the Attorney General’s Office or the trial court.  Mayes points to a letter, on which he was copied, from the Attorney General’s Office to the trial court coordinator referencing a prior phone conversation and scheduling of the telephonic hearing.  This letter appears to be nothing more than normal correspondence scheduling a hearing.  Nothing in the record substantiates Mayes’s allegations of collusion.  We overrule Mayes’s challenge to the trial court’s exercise of his judicial office.

The trial court’s judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,                                                     

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed July 18, 2007

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[1]               In his “reply brief,” Mayes states that O’Reilly omitted “part of the record” that “support[s] factual undisputed evidence.”

an>                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed on October 24, 2001

Do not publish

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