Randolph A. Lopez, D/B/A Brown Hand Center and D/B/A Brown Medical Center v. Cox Texas Newspapers, L.P., D/B/A Austin American-Statesman ( 2015 )

ACCEPTED
03-14-00331-CV
3937092
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/28/2015 3:52:26 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00331-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 1/29/2015 11:28:26 AM
JEFFREY D. KYLE
Clerk
Randolph A. Lopez, appellant
v.
Cox Texas Newspapers, L.P., appellee
On Appeal from County Court at Law No. 2
Travis County, Texas
Tr. Ct. No. C-1-CV-13-002354
APPELLEE’S BRIEF
Timothy A. Hootman, SBN 09965450
2402 Pease St
Houston, TX 77003
713.247.9548
713.583.9523 (f)
Email: thootman2000@yahoo.com
Bill Malone, Jr., SBN 12877500
8650 Spicewood Springs, No 145-598
Austin, TX 78759
512.346.9600
ATTORNEYS FOR APPELLEE, COX TEXAS
NEWSPAPERS, L.P.
ORAL ARGUMENT REQUESTED
(only if granted to appellant)
1
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................... 2
INDEX OF AUTHORITIES .............................................................................. 3
STATEMENT OF FACTS ................................................................................. 5
SUMMARY OF ARGUMENT ......................................................................... 10
ARGUMENT AND AUTHORITIES .................................................................. 11
1. Introduction .................................................................................... 11
2. Craddock is not the standard of review ...................................12
3. Conscious indifference .................................................................14
4. Meritorious defense—“did not sign contract”....................... 18
5. Meritorious defense—“attorney’s fees” .................................. 20
6. “No harm or injury” ..................................................................... 22
PRAYER ..................................................................................................... 24
CERTIFICATE OF WORD COUNT ................................................................. 25
CERTIFICATE OF SERVICE ......................................................................... 25
2
INDEX OF AUTHORITIES
Texas cases:
Carlin v. 3V, Inc., 928 S.W.2d 291 (Tex. App.—Houston [14th Dist.] 1996, no
pet.)…………………………………………………………………………………………………. 14
Carpenter v. Cimarron Hydorcarbons Corp., 98 S.W.3d 682 (Tex. 2002)……….12
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)……………………………………. 19
Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124
(1939)………………………………………………………………………………………. passim
Farmer v. Ben E. Keith Co., 919 S.W.2d 171 (Tex. App.—Fort Worth 1996, no
writ)………………………………………………………………………………………………… 16
Gumble v. Grand Homes 2000, L.P., 334 S.W.3d 1 (Tex. App.—Dallas 2007, no
pet.)………………………………………………………………………………………………… 21
Holley v. Holley, 864 S.W.2d 703 (Tex. App.—Houston [1st Dist.] 1993, writ
denied)…………………………………………………………………………………………….. 14
Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011)………………………………………………………….. 13
In re L.M.I., 119 S.W.3d 707 (Tex. 2003)……………………………………………………….21
Lasikplus v. Mattioli, 418 S.W.3d 210 (Tex. App.—Houston [14th Dist.] 2013, no
pet.)…………………………………………………………………………………………………. 14
Lewis v. Nolan, 105 S.W.3d 185 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied)……………………………………………………………………………………………. 21
Little v. Needham, 236 S.W.3d 328 (Tex. App.—Houston [1st Dist.] 2007, no
pet.)…………………………………………………………………………………………………. 21
Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374 (Tex. 2004)………………. 19
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex.
2009)………………………………………………………………………………………………. 19
Neimes v. Ta, 985 S.W.2d 132 (Tex. App.—San Antonio 1998, pet. dism’d by
agr.)…………………………………………………………………………………………………. 16
O’Connell v. O’Connell, 843 S.W.2d 212 (Tex. App.—Texarkana 1992, no
writ)……………………………………………………………………………………………….. 22
Perez v. Embree Const. Group, Inc., 228 S.W.3d 875 (Tex. App.—Austin 2007,
pet. denied)………………………………………………………………………………………. 13
State v. H.M. Huber Corp., 145 Tex. 517, 199 S.W.2d 501 (1947)…………………….. 21
Spectrum Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997)………………………………….18
3
Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002)………………………………. 19
Tucker v. Brackett, 28 Tex. 336 (1866) ……………………………………………………….. 21
Waddy v. City of Houston, 834 S.W.2d 97 (Tex. App.—Houston [1st Dist.] 1992,
writ denied)……………………………………………………………………………………….17
Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003)……………………………………………. 13
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding)……………………13
Federal cases:
Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120 (5th Cir. 1997)………………… 21
United States v. Atkinson, 297 U.S. 157, 56 S. Ct. 391 (1936)………………………….. 21
Rules:
TEX. R. APP. P. 33.1(a)(1)…………………………………………………………………………….. 21
TEX. R. APP. P. 38.9…………………………………………………………………………………….. 19
TEX. R. CIV. P. 166a(c)…………………………………………………………………… 12, 16, 19,21
4
STATEMENT OF FACTS
Appellant, Randolph A. Lopez d/b/a Brown Hand Center and
d/b/a Brown Medical Center, is called “Lopez” in this brief. Appellee,
Cox Texas Newspapers, L.P. d/b/a Austin American Statesman, is
called “Cox.”
***
On March 12, 2013, Cox sued Michael Glyn Brown and Lopez
on a sworn account for failing to pay for advertising ran in Cox’s
newspaper—the Austin American Statesman—for the year of 2012
(CR 5-11). Cox alleged as theories of recovery breach of contract,
unjust enrichment, and fraud (CR 5-11). Lopez filed a general denial
(CR 12).
On November 19, 2013, Cox filed a notice of nonsuit as to
defendant Michael Glyn Brown, leaving Lopez as the only remaining
defendant (CR 14-15).
On February 12, 2014, Cox filed a traditional motion for
summary judgment (CR 16-41). Attached to the motion is Lopez’s
response to requests for admission, wherein he admits that:
1. On or before December 1, 2012, Plaintiff delivered to
Defendant the goods, wares, merchandise, or services
referred to in the invoice(s) and/or statement(s)
5
labeled “Exhibit A” and attached to Plaintiff’s Original
Petition filed in this suit.
2. Defendant accepted the goods, wares, merchandise, or
services delivered by Plaintiff and referred to in
request for admission number 1.
3. The goods, wares, merchandise, or services referred to
in request for admission number 1 were delivered to
Defendant by Plaintiff in the quantities shown in the
invoices referred to in “Exhibit A” attached to
Plaintiff’s Original Petition.
4. The prices charged for the goods, wares, merchandise,
or services referred to in request for admission number
1 were the prices agreed to by Plaintiff and Defendant.
5. The balance shown on the invoices referred to in
request for admission number 1 represents the value of
the goods, merchandise, or services delivered to
Defendant by Plaintiff.
***
7. The principle amount due and owing to Plaintiff from
Defendant for the goods, wares, merchandise, or
services referred to in request for admission number 1
was $37, 415.00 as of December 1, 2012.
8. Except for any credits or payments shown on “Exhibit
A” attached to Plaintiff’s Original Petition, Defendant
has failed to pay the amount due Plaintiff on the
account that is the subject of this suit.
9. On or before 30 days before the filing of this lawsuit,
Plaintiff presented to Defendant a claim for payment of
the outstanding balance referred to in request for
admission number 7.
10. The goods, wares, merchandise, or services received by
Defendant from Plaintiff conform to all
representations and warranties made, if any.
11. All sums due on the account were payable in Travis
County, Texas.
(CR 18-21).
6
On February 18, 2014, Lopez filed a suggestion of bankruptcy
stating that on October 15, 2013, the “Brown Medical Center” had
filed a petition for voluntary bankruptcy (CR 42-43). However, the
appellate record indicates that Michael Glynn Brown and Brown
Medical Center, Inc. filed petitions for bankruptcy1 (CR 58). Thus,
there was no bankruptcy stay affecting the case because the two
parties to the bankruptcy cases were not parties to this case. See 11
U.S.C. § 362. Lopez’s suggestion of bankruptcy hints that “Randolph
A. Lopez d/b/a Brown Hand Center and d/b/a Brown Medical
Center” filed for bankruptcy, but that is clearly not the case (CR 46).
Even though he was aware of the motion for summary
judgment hearing, Lopez chose not to file a response (CR 46).
On March 23, 2014, the trial court granted Cox’s motion for
summary judgment and entered a final judgment against Lopez in the
amount of $37,415.00 plus $8,100.09 in pre-judgment interest,
$12,471.67 in attorney fees, post-judgment interest, and appellate
attorney’s fees (CR 45).
1 The two cases are more particularly described as Case Number 13-
35892-H4-11 and Case Number 13-36405-H4-11, and were pending in the
United States Bankruptcy Court for the Southern District of Texas.
Moreover, the two filings were being jointly administered under Case
Number 13-35892 (CR 58).
7
On May 21, 2014, Lopez filed a “Motion to Extend
Postjudgment Deadlines” because he “nor his attorney received
notification until twenty days after the final judgment was signed”
(CR 83-84). On that same day, Lopez filed a “Motion for
Reconsideration and New Trial” wherein he argues (1) that a
suggestion of bankruptcy filed by “Brown Medical Center” stayed the
case even though neither Lopez nor Brown Medical Center, Inc. were
a party to the bankruptcy case, (2) that there is “a genuine issue of
material fact as to who contracted with Cox to obtain advertising
services for Dr. Lopez,” (3) that because Cox lacks standing to pursue
the claim against Lopez he has a meritorious defense, 2 and (4) that
Lopez’s failure to appear was the result of mistake or accident—
namely, although he was aware of the motion for summary judgment
hearing, he filed a suggestion of bankruptcy instead of a response to
the motion for summary judgment believing the case would be stayed
(CR 46-54). In support of the motion for new trial Lopez attached the
affidavit of his secretary, Elizabeth Deleon, who stated in part:
I assisted with the filing of all of the pleadings
in this matter, including the Suggestion of
Bankruptcy filed on February 18, 2014. After
filing the Suggestion of Bankruptcy, I
2 Lopez does not pursue the standing argument on appeal.
8
contacted the Court to have the hearing on
Plaintiff’s Motion for Summary Judgment
removed from the calendar. I was advised
that the proceeding should not go forward,
and that Plaintiff’s counsel should call the
court and cancel said hearing if they were in
receipt of the Suggestion of Bankruptcy. I was
also told that the Judge would not sign an
order on Plaintiff’s motion as a suggestion of
bankruptcy was on file.
I attempted to contact Mr. Bill Malone by
telephone after my conversation with the
Court. I also emailed and called Plaintiff’s
counsel, Mr. Bill Malone, several times, to no
avail. Attached [is a copy of the] email I sent
to Mr. Malone on March 18, 2014 prior to the
hearing, in which I inquired as to whether or
not he had removed the hearing from the
Court’s docket. I received no response (CR
108-109).
On July 1, 2014, the trial court granted the motion to extend the
post-judgment deadlines stating “Defendant did not receive actual
notice of the Court’s March 18, 2014 Order until April 24, 2014”3
(Sup. CR 4).
The motion for new trial was denied by operation of law. See
TEX. R. CIV. P. 329b(c).
3 There is no order dated March 18, 2014, but the order granting the
motion for summary judgment is signed March 28, 2014, and is filed
stamped March 18, 2014 (CR 45).
9
SUMMARY OF ARGUMENT
According to the supreme court’s opinion in Carpenter v.
Cimarron Hydorcarbons Corporation, the Craddock default
standard does not apply in this case because Lopez had notice of the
motion for summary judgment hearing.
When the trial court denied Lopez’s motion for new trial it was
confronted with the following circumstances: (1) Lopez stated that he
had intentionally not filed a response to the motion for summary
judgment because he “believed” the suggestion of bankruptcy that he
filed would stay the proceedings; (2) the suggestion of bankruptcy
and motion for new trial filed by Lopez misleadingly suggests that
“Randolph A. Lopez d/b/a Brown Hand Center and d/b/a Brown
Medical Center” had filed for bankruptcy when that is not the case;
and (3) Lopez’s argument to the trial court that it was Cox’s fault for
Lopez’s failure to respond reflects badly on Lopez’s credibility. Under
these circumstances, it was not an abuse of discretion for the trial
court to have denied Lopez’s motion for new trial.
10
ARGUMENT AND AUTHORITIES
1.
Introduction
Lopez argues on appeal that the trial court abused its discretion
in denying his motion for new trial because, as a matter of law, his
failure to timely respond to Cox’s motion for summary judgment is
excused under the Craddock default-judgment standard.4 More
specifically, Lopez argues in subparts a, b, c, and d of his brief that (a)
under Craddock his failure to respond to Cox’s motion for summary
judgment was not the result of conscious indifference; (b) and (c)
under Craddock he has two meritorious defenses—he did not sign the
contract in question and on remand the trial court may award less
attorney’s fees under a segregation theory; and (d) under Craddock
Cox will not be harmed by the grant of a new trial. These arguments
are discussed separately below.
4 “A default judgment should be set aside and a new trial ordered in
any case in which the failure of [the] defendant to answer before judgment
was not intentional, or the result of conscious indifference on his part, but
was due to a mistake or accident, provided the motion for new trial sets up
a meritorious defense and is filed at a time when the granting thereof will
occasion no delay or otherwise work an injury to the plaintiff.” Craddock
v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939).
11
2.
Craddock is not the standard of review
Lopez argues that the Craddock default standard applies in the
context of the default summary judgment proceeding in this case. See
Aplt. Br. at 8-10. However, Craddock clearly does not apply and the
circumstances of this case are squarely controlled by the holding in
Carpenter v. Cimarron Hydorcarbons Corp., 98 S.W.3d 682 (Tex.
2002). In Carpenter, the supreme court held that “Craddock does
not apply to a motion for new trial after summary judgment is
granted on a motion to which the nonmovant failed to timely respond
when the respondent had notice of the hearing and an opportunity to
employ the means our civil procedure rules make available to alter
the deadlines Rule 166a imposes.” Id. at 683-84 (emphasis added).
Thus, at least when the nonmovant had notice prior to a hearing,
Craddock does not apply to a motion for new trial following a default
summary judgment. Id.
Here, Lopez admits that he had notice of the hearing of Cox’s
motion for summary judgment and intentionally chose to file a
suggestion of bankruptcy instead of a response to the motion for
summary judgment (CR 46-54; 108-109). Therefore, the trial court’s
12
ruling on Lopez’s motion for new trial is subject to an abuse of
discretion standard of review, not the Craddock default standard. See
Tex. R. Civ. P. 320 (“New trials may be granted and judgment set
aside for good cause[.]”); Perez v. Embree Const. Group, Inc., 228
S.W.3d 875, 885 (Tex. App.—Austin 2007, pet. denied) (“The
resolution of a motion for new trial is left up to the trial court’s
discretion.”).
Under the abuse of discretion standard of review, a trial court
abuses its discretion when it acts arbitrarily or unreasonably, without
reference to guiding rules or principles, or by failing to analyze or
apply the law correctly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
Moreover, a trial court has no discretion in determining what the law
is or applying the law to the facts and a clear failure by the trial court
to analyze or apply the law correctly will constitute an abuse of
discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992 (orig.
proceeding). An abuse of discretion has not occurred merely because
an appellate would have decided the matter differently. Walker v.
Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). In making an abuse of
discretion determination, the appellate court views the evidence in
the light most favorable to the trial court’s ruling and indulges every
13
legal presumption in favor of the judgment. Lasikplus v. Mattioli,
418 S.W.3d 210, 216 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(“When consideration of evidence is required, we view it in the light
most favorable to the trial court’s order, indulging every reasonable
inference in favor of the trial court’s determination.”); Carlin v. 3V,
Inc., 928 S.W.2d 291, 294 (Tex. App.—Houston [14th Dist.] 1996, no
pet.) (“[W]here no findings of fact are given, it will be presumed the
trial court made all findings necessary to support the interlocutory
order.”); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston
[1st Dist.] 1993, writ denied).
Thus, this Court should uphold the trial court’s denial of
Lopez’s motion for new trial if the ruling was not arbitrary or
unreasonable, was guided by the proper rules and principles, and is
supported by evidence as viewed in the light most favorable to the
ruling.
3.
Conscious indifference
In Part B, a of appellant’s brief, Lopez argues that under
Craddock his failure to respond to Cox’s motion for summary
judgment was not the result of conscious indifference. See Aplt. Br. at
14
12-15. Again, the Craddock default standard is not the correct
standard of review, but rather the abuse of discretion standard should
be applied.
Lopez’s reason for not filing a response is that his lawyer
believed the suggestion of bankruptcy would stay the case thereby
eliminating the need to respond to the motion for summary judgment
(CR 46). See also Aplt. Br. at 4. Lopez also argued to the trial court
(but not on appeal) that his failure to respond was somehow Cox’s
fault; he stated in this regard in his motion for new trial:
Dr. Lopez’s failure to respond and appear at
the hearing on Plaintiff’s Motion for Summary
Judgment was not intentional or the result of
conscious indifference. Dr. Lopez timely filed
a suggestion of bankruptcy with [the trial
court] … which he mistakenly believed stayed
all pending matters in [the trial court].
Plaintiff’s counsel did not inform Dr. Lopez
that he intended to proceed, nor did he return
any of Dr. Lopez’s phone calls. After lying in
wait in what can only be described as an effort
to sandbag Dr. Lopez, Plaintiff’s counsel
waited more than thirty days to provide Dr.
Lopez with post-judgment discovery so as not
to alert Dr. Lopez of the entry of the March 18
judgment (CR 46-47).
Although Cox’s “fault” is not pointed to by Lopez on appeal as a basis
for reviewing the trial court’s ruling, under the abuse of discretion
standard of review, this Court should consider that argument and the
15
evidence introduced by Lopez in support thereof as part of the totality
of the circumstances confronting the trial court as a basis of its denial
of the motion for new trial—basically the ridiculousness of the
argument likely (and properly) caused the trial court to discount the
credibility of Lopez.
As for the rules and principles that the trial court was required
to apply to the request for a new trial, Rule 166a(c) provides that
“[e]xcept on leave of court, the adverse party, not later than seven
days prior to the day of hearing may file and serve opposing affidavits
or other written response.” TEX. R. CIV. P. 166a(c). And, although a
trial court may allow a late response to a motion for summary
judgment, Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 176 (Tex.
App.—Fort Worth 1996, no writ), the non-movant must obtain leave
of court, Neimes v. Ta, 985 S.W.2d 132, 139 (Tex. App.—San Antonio
1998, pet. dism’d by agr.).
If the trial court allows a late response, the court “must
affirmatively indicate in the record acceptance of the late filing.”
Farmer, 919 S.W.2d at 176. Absent an indication that the trial court
allowed the late filing, the appellate court should presume the trial
court refused the late filing, even if the response is included in the
16
appellate record. Waddy v. City of Houston, 834 S.W.2d 97, 101
(Tex. App.—Houston [1st Dist.] 1992, writ denied).
When considering the motion for new trial, the trial court was
confronted with a party (Lopez) that had intentionally not filed a
response to the motion for summary judgment with the explanation
for not doing so being that the party (Lopez) believed that the
suggestion of bankruptcy would stay the proceedings. This “belief”
was, under all of the circumstances surrounding it, hard to accept as
truthfully felt. At the very least it was clearly not supported by the
law because a non-parties bankruptcy filing never stays a judicial
proceeding. The trial court was also confronted with a suggestion of
bankruptcy and a motion for new trial that suggested incorrectly that
“Randolph A. Lopez d/b/a Brown Hand Center and d/b/a Brown
Medical Center” had filed for bankruptcy when that is not the case
(CR 46). This slight seems intentional. And, the trial court was
confronted with the argument that it was Cox’s fault for Lopez’s
failure to respond, an argument that reflects badly on Lopez’s
credibility. Under these circumstances, it was not an abuse of
discretion for the trial court to have denied the motion for new trial.
17
4.
Meritorious defense—“did not sign contract”
In Part B, b of appellant’s brief, Lopez argues that under
Craddock he has a meritorious defense—namely, that he did not sign
the contract in question. See Aplt. Br. at 16-19. Within this argument,
Lopez claims that the summary judgment proof contained in Cox’s
motion presents a genuine issue of material fact as to whether he
signed the contract. See Aplt. Br. at 17 (“Cox cannot establish, based
on the evidence in this record, that Dr. Lopez is a party to the
Contract.”), and at 18 (“From this it seems clear that the contracting
party was Brown and not Dr. Lopes, but at a minimum, it raises a fact
issue.”). In making this argument, Lopez convolutes the Craddock
default standard with the summary judgment standard of review.
The proper inquiry in the review of a default-type motion for
summary judgment is whether the motion for summary judgment
itself expressly presents the grounds upon which it is made and
whether it stands or falls on these grounds alone. See Spectrum Inc.
v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (The movant’s “motion
for summary judgment must itself expressly present the grounds
upon which it is made, and must stand or fall on these grounds
18
alone.”). In that case, the standard of review would be de novo.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). Moreover, a movant must prove that there is
no genuine issue regarding any material fact and that it is entitled to
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex.
Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A matter
is conclusively established if reasonable people could not differ as to
the conclusion to be drawn from the evidence. See City of Keller v.
Wilson, 168 S.W.3d 802, 816 (Tex. 2005). To determine if there is a
fact issue, the evidence is viewed in the light most favorable to the
nonmovant, crediting favorable evidence if reasonable jurors could do
so, and disregarding contrary evidence unless reasonable jurors could
not. Id. at 827. A reviewing court should indulge every reasonable
inference and resolve any doubt in the nonmovant’s favor. Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
If this Court is willing grant Lopez leeway and construe his
appellant’s brief as having properly raised the issue of the adequacy of
Cox’s motion for summary judgment, see TEX. R. APP. P. 38.9, the
Court will nevertheless find that that argument fails. This is because,
at best, Lopez’s argument is limited to the claim that there is a fact
19
question as to whether Lopez signed the contract in question; yet, he
admitted in the requests for admission that he is liable under the
contract (CR 18-41). Lopez’s argument to circumvent the admissions
problem is that on remand the trial court could undeem the
admissions. See Aplt. Br. at 19. However, Lopez did not file a motion
to undeem the admissions and the trial court considered the motion
for summary judgment with the admissions as part of the summary
judgment proof. Therefore, the summary judgment proof shows, as a
matter of law, that there was no genuine issue regarding whether
Lopez was obligated under the contract that is the basis of this case.
5.
Meritorious defense—“attorney’s fees”
In Part B, c of appellant’s brief, Lopez argues that under
Craddock he has a meritorious defense—namely, that on remand the
trial court may award less attorney’s fees under a segregation theory.
See Aplt. Br. at 20-12. Because Lopez argues in this portion of his
brief that the trial court abused its discretion by not granting the
motion for new trial (he does not convolute the motion for summary
judgment standard as he does in Part B, b of his brief), the only
20
question is whether the trial court was within its discretion in denying
the motion for new trial.
This argument was never presented to the trial court for
consideration. Of course, there is a long-standing rule that an issue
may not be raised on appeal if not first presented in the trial court.
TEX. R. APP. P. 33.1(a)(1).5 The practical reasons for this rule are well-
founded and widely recognized.6 Moreover, the rule applies to
summary judgment proceedings. TEX. R. CIV. P. 166a(c) (“Issues not
expressly presented to the trial court by written motion, answer or
other response shall not be considered on appeal as grounds for
reversal [of a summary judgment].”). 7
5 See also In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (to preserve
for appellate review, including constitutional error, a party must present to
trial court timely request, motion, or objection, state specific grounds
thereof, and obtain ruling); State v. H.M. Huber Corp., 145 Tex. 517, 199
S.W.2d 501, 502 (1947); Tucker v. Brackett, 28 Tex. 336, 340 (1866);
Gumble v. Grand Homes 2000, L.P., 334 S.W.3d 1, 3-4 (Tex. App.—Dallas
2007, no pet.) (citing many cases for the proposition that “a party is
required to present a complaint to the trial judge before being allowed to
raise the issue on appeal”).
6 See, e.g., Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120, 1129
(5th Cir. 1997) (“A chief justification for our general rule against permitting
new issues to be raised on appeal is the concern ‘of the public interest’ for
protecting the finality of judgment.”) (citing United States v. Atkinson, 297
U.S. 157, 159, 56 S. Ct. 391 (1936)).
7 Little v. Needham, 236 S.W.3d 328, 333 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (applying rule to non-movant in summary judgment
case); Lewis v. Nolan, 105 S.W.3d 185, 189 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied) (applying rule to movant in summary judgment
21
Accordingly, this argument should be overruled.
6.
“No harm or injury”
In Part B, d of appellant’s brief, Lopez argues that under
Craddock he has Cox will not be harmed by the grant of a new trial.
This is a purely Craddock element and does factor into the analysis of
whether the trial court abused its discretion in denying the motion for
new trial. But even if Craddock were the proper standard, Cox is
harmed by having had to incur the attorney’s fees of dealing with the
“default” because there is no offer or evidence presented by Lopez in
his motion for new trial that he was ready and willing to reimburse
Cox for his expenses as required under Craddock. See, e.g., O’Connell
v. O’Connell, 843 S.W.2d 212, 220 (Tex. App.—Texarkana 1992, no
writ) (holding that the appellant must show it is ready and must offer
to reimburse the appellee for expenses).
case and stating “summary judgment cannot be affirmed on a ground not
raised in the motion”).
22
PRAYER
Accordingly, appellee, Cox Texas Newspapers, L.P. d/b/a
Austin American Statesman, prays that this Court affirm the
judgment of the trial court.
Respectfully submitted,
/s/Timothy A. Hootman_____
Timothy A. Hootman
SBN 09965450
2402 Pease St
Houston, TX 77003
713.247.9548
713.583.9523 (fax)
E-mail: thootman2000@yahoo.com
Bill Malone, Jr.
SBN 12877500
8650 Spicewood Springs, No 145-
598
Austin, TX 78759
ATTORNEYS FOR APPELLEE, COX
TEXAS NEWSPAPERS, L.P.
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CERTIFICATE OF WORD COUNT
I hereby certify that, in accordance with Rule 9.4 of the Texas
Rules of Appellate Procedure, that the number of words contained in
this document are 4,638 according to the computer program used to
prepare this document.
Dated: January 28, 2015.
/s/Timothy A. Hootman_____
Timothy A. Hootman
CERTIFICATE OF SERVICE
I hereby certify that, in accordance with Rule 9.5 of the Texas
Rules of Appellate Procedure, I have served the forgoing document
upon the following attorneys by personal mail, commercial delivery
service, fax, or electronic service:
Isaac J. Huron
Ramon Rodriguez
Davis, Cedillo & Mendoza
McCombs Plaza, Ste 500
San Antonio, TX 78212
Dated: January 28, 2015.
/s/Timothy A. Hootman_____
Timothy A. Hootman
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