Jennifer Simpson Black v. Cheryl Dietzman D/B/A DS Bader & Associates ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00165-CV
JENNIFER SIMPSON BLACK APPELLANT
V.
CHERYL DIETZMAN D/B/A DS APPELLEE
BADER & ASSOCIATES
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FROM COUNTY COURT AT LAW NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CV-2012-02212
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Jennifer Simpson Black, appearing pro se, appeals from the trial
court’s summary judgment for Appellee Cheryl Dietzman d/b/a DS Bader &
1
See Tex. R. App. P. 47.4.
Associates. Dietzman sued Black and various entities that Black operated2 for
breach of contract and for fraudulent transfers under the Texas Uniform
Fraudulent Transfer Act arising from a contract between the parties for Dietzman
to perform technical recruiting. Dietzman filed a traditional motion for summary
judgment, and the trial court granted it; the trial court signed a judgment in favor
of Dietzman and against Black and her companies, jointly and severally for
$18,688.00 in damages and for $15,087.41 in attorney’s fees. Liberally
construing Black’s pro se issues on appeal, she appears to argue that the trial
court erred by granting summary judgment (1) for Dietzman because Dietzman
failed to “establish a valid certificate of service” and failed to send copies of
pleadings to Black; (2) against Black individually instead of against an entity she
operated known as S&B Consulting Group, LLC; and (3) for Dietzman because
the case proceeded “past the 18 months[’] time standards.” We will affirm.
II. SUMMARY JUDGMENT WAS PROPER
A. Service on Black
Black argues that the trial court erred by granting summary judgment for
Dietzman because Dietzman failed to establish a valid certificate of service and
failed to send copies of all pleadings and summonses to Black. The record
2
By Memorandum Opinion dated June 26, 2014, this court dismissed for
want of jurisdiction the appeals of Black’s entities––S&B Consulting Group, LLC
and SimpsonBlack Consulting Group, LLC––because the notices of appeal filed
on behalf of the entities by Black, a nonattorney, were ineffective. See S&B
Consulting Grp., LLC v. Dietzman, No. 02-14-00165-CV, 2014 WL 2922311, at
*1 (Tex. App.—Fort Worth June 26, 2014, no pet.) (mem. op.).
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reflects, however, that Dietzman’s original petition was served on Black3 and that
Dietzman’s motion for summary judgment was properly served on Black’s
attorney.4 The record also reflects that Dietzman’s motion for summary judgment
contains a certificate of service, which creates a valid presumption of service.5
See Tex. R. Civ. P. 21; Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672
(Tex. App.—Fort Worth 1996, no writ). Black has not rebutted this presumption
by an offer of proof of nonreceipt, and the three documents titled, “Defendants’
Motion[s] to Object [to] Summary Judgment” that she filed pro se indicate that
she did receive copies of all pleadings and motions or had obtained them from
her attorney. The order granting Dietzman’s motion for summary judgment
specifically states, “The Court finds that the Plaintiff and Defendants had proper
3
The record shows service on Black individually as well as on her entities.
Additionally an answer was timely filed on behalf of all defendants.
4
Black’s counsel withdrew after Dietzman filed her motion for summary
judgment. The trial court granted a continuance and ordered that Dietzman reset
her motion for a hearing in approximately two months. Black then proceeded pro
se in the trial court, filing a “Defendant’s Intent to File Bankruptcy,” two separate
“Motion[s] for Dismissal/Non-suit, a “Defendants’ Motion Notice of Removal,” a
“Defendant’s Motion to Object [to] Summary Judgment,” two more “Notice[s] of
Bankruptcy Filing,” two more “Defendant’s Motion[s] to Object [to] Summary
Judgment,” and two “Defendant’s Notice of Violation of Improperly Filing Motion.”
None of the motions filed by Black disputed the facts asserted in Dietzman’s
summary-judgment motion or included summary-judgment evidence
controverting Dietzman’s summary-judgment evidence. The summary-judgment
hearing was held over a year after Black’s trial counsel withdrew.
5
Although Black does not specify which document filed by Dietzman did
not contain a valid certificate of service, we focus on Dietzman’s motion for
summary judgment because the trial court disposed of the case on that motion.
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notice.” Because the record before us conclusively establishes that Dietzman
served her pleadings and summary-judgment motion on Black, or on Black’s
attorney while Black was represented, and that Black had proper notice of the
setting on Dietzman’s motion for summary judgment, we overrule Black’s first
complaint.
B. Judgment Against Black Individually
Black also argues that the summary judgment is improper because S&B
Consulting Group, LLC established that it is a legal entity in the State of Texas
and that all documentation for the contract with Dietzman was through S&B
Consulting Group, LLC. Because we dismissed S&B Consulting Group, LLC
from this appeal for lack of jurisdiction, we broadly construe Black’s complaint as
asserting that the trial court erred by granting summary judgment jointly and
severally against Black individually.
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
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summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.
166a(b), (c).
Dietzman’s summary-judgment motion and the attached evidence span
186 pages in the clerk’s record. Dietzman sued both Black and Black’s entities.
Dietzman’s summary-judgment motion alleges that she had a contract with Black
and with one of Black’s entities; Black admitted in requests for admission that
she had an agreement to pay Dietzman. Numerous emails between Black and
Dietzman are attached as summary-judgment evidence documenting the parties’
agreement. Black presented no controverting summary-judgment evidence to
the trial court. Thus, viewing the summary-judgment evidence (Dietzman’s
summary-judgment evidence) in the light most favorable to Black, no genuine
issue of material fact exists as to whether Black was acting in her individual
capacity (or in both her individual capacity and on behalf of one of her entities) in
her dealings and communications with Dietzman. Black’s challenge to this
element of Dietzman’s breach-of-contract and fraudulent-transfer claims thus
fails.6 Because the trial court did not err by granting summary judgment for
Dietzman against Black in her individual capacity jointly and severally with
Black’s entities, we overrule Black’s second complaint.
6
The record before us likewise conclusively establishes the other elements
of Dietzman’s breach-of-contract and fraudulent-transfer claims.
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C. Permissive Time Standards
In her third complaint, Black argues that the trial court erred by granting
Dietzman’s motion for summary judgment because the case proceeded “past the
18 months[’] time standards.” Specifically, Black argues that this case was filed
on August 12, 2012; that it was not disposed of until May 20, 2014; and that
“Texas Civil rule 1.10” requires civil jury cases to be brought to trial or final
disposition within eighteen months from the first appearance date, so far as
reasonably possible.7 Texas Rule of Civil Procedure 165a(2) provides that “[a]ny
case not disposed of within the time standards promulgated by the Supreme
Court under its Administrative Rules may be placed on a dismissal docket.” Tex.
R. Civ. P. 165a(2) (emphasis added). The rule is permissive rather than
mandatory and provides no relief on appeal. See Tex. Gov’t Code Ann.
§ 311.016(1) (West 2013) (explaining that “may,” when used in a statute,
indicates that the provision is discretionary, not mandatory); In re Ten Hagen
Excavating, Inc., 435 S.W.3d 859, 866 (Tex. App.—Dallas 2014, orig.
proceeding) (same). We overrule Black’s third complaint.
7
We are unable to locate the rule that Black points to; however, the
“Administrative Rules for Courts,” adopted by the district and statutory county
courts in Denton County, includes the following rule: “1.6 CONCLUSION OF
LITIGATION TO BE HEARD BY A JURY. Civil jury cases should be concluded
within 18 months from appearance date.” Administrative Rules for Courts,
http://dentoncounty.com/~/media/Departments/District-
Clerk/PDFs/Administrative_Rules.pdf (last visited April 16, 2015); see also Tex.
R. Jud. Admin. 6.1(b)(1).
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III. CONCLUSION
Having overruled all of Black’s challenges to the trial court’s summary
judgment, we affirm it.
PER CURIAM
PANEL: WALKER, GARDNER, and MEIER, JJ.
DELIVERED: April 23, 2015
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