Phenel Mondesir v. Luby's Restaurants Limited Partnership ( 2010 )

Opinion issued December 9, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00402-CV

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Phenel MoNdesir, Appellant

V.

Luby’s Restaurants, Limited Partnership, Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Case No. 2008-35815

MEMORANDUM OPINION

Phenel Mondesir appeals from an order granting final summary judgment in favor of Luby’s Restaurants, Limited Partnership.  In his sole issue, Mondesir argues that his uncontroverted evidence raised genuine questions of material fact.  Because Mondesir did not preserve his objection to the evidence submitted in support of the summary-judgment motion, and because he failed to adequately brief the issue of whether there were genuine issues of material fact, we conclude that any error by the trial court was waived.  Accordingly, we affirm.

Factual Background

          Mondesir, a supervisor at a Luby’s cafeteria, was fired after an altercation with another employee in which the other employee used a racial slur.  Following his termination, Mondesir filed suit against Luby’s alleging disability discrimination in violation of the Texas Commission on Human Rights Act, negligence, intentional infliction of mental distress, gross negligence, vicarious liability for the negligence of another Luby’s employee, and negligent investigation.

          Luby’s moved for summary judgment claiming that it was entitled to judgment as a matter of law on all of Mondesir’s claims.  It attached three exhibits in support of its motion for summary judgment: (1) a form signed by Mondesir acknowledging his receipt of the Luby’s employee handbook and certifying that he was an at-will employee; (2) a disciplinary form, also signed by Mondesir, reprimanding him for inappropriate conduct; and (3) an excerpt from Mondesir’s deposition in which he stated that he was not disabled.

          Mondesir filed a second amended petition which alleged additional claims of wrongful discharge; libel, slander, and defamation; retaliation; business disparagement; and age discrimination.  He also responded to the motion for summary judgment and submitted an affidavit in which he swore that the signatures on the employee handbook and disciplinary form were not his, that he had never been suspended without pay, and that he had previously observed Luby’s giving different treatment to different employees based on race.

          Mondesir objected to the competency of the summary-judgment evidence submitted by Luby’s on the grounds that the factual statements contained in the body of the motion were inadmissible because they were not verified or supported by sworn affidavits.  He argued that there were questions of material fact with respect to his negligence claims and his intentional infliction of emotional distress claim.  Following a hearing, the trial court granted summary judgment in favor of Luby’s and dismissed all of Mondesir’s claims with prejudice. 

On appeal, Mondesir argues that the trial court erred in granting summary judgment because his uncontroverted evidence raised genuine issues of material fact.

Analysis

I. Standard of review

We review the trial court’s summary judgment de novo.  See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  Under the traditional summary-judgment standard, a defendant moving for summary judgment has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  In order to prevail, the defendant must conclusively negate at least one essential element of each of the plaintiff’s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  After the defendant produces evidence demonstrating its entitlement to summary judgment, the burden shifts to the plaintiff to present evidence that creates a genuine issue of material fact.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s favor.  Sci. Spectrum, 941 S.W.2d at 911 (citing Nixon, 690 S.W.2d at 549).

II. Competency of summary-judgment evidence

Mondesir argues in his brief that the unsworn and unverified statements contained in the summary-judgment motion should not have been considered by the trial court because they were not competent summary-judgment evidence.

Summary-judgment evidence must be presented in a form that would be admissible at trial.  See, e.g., Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).  But if a party has objections to defects in the form of supporting attachments, those objections must be made in writing and placed before the trial court, or the objections will be waived.  See Tex. R. Civ. P. 166a(f); Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990).  A party’s failure to secure a ruling on an objection also waives the issue on appeal.  See, e.g., Vice, 318 S.W.3d at 11.

Here, Mondesir objected to the evidence submitted in the motion for summary judgment but failed to obtain a ruling on the objections, and therefore he has not preserved his complaint on appeal.  We overrule this issue.

III. Questions of material fact

Mondesir argues that the summary judgment should be reversed because there were genuine issues of material fact raised in his summary-judgment response.  Such a general statement of the issue on appeal is sufficient to raise arguments as to all possible grounds upon which summary judgment should have been denied. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).  The Texas Rules of Appellate Procedure, however, require that appellate briefs “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1(i).  Mondesir was not relieved of the burden to present articulate and succinct arguments for the issues raised, stating the reasons why the trial court erred in granting summary judgment in favor of Luby’s.  See Orion Ref. Corp. v. UOP, 259 S.W.3d 749, 760 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

Here, Mondesir made one argument consisting of two pages in which he purported to assert that summary judgment was improperly granted as to all his claims.  The substantive portion of his argument is as follows:

Insofar as Appellant excepted and objected to Appellee’s Motion For Summary Judgment and the dearth of evidence proffered by it in support thereof, it was incumbent upon Appellee to correct the deficiencies before going forward with same in a hearing thereon.  Since Appellee failed to do so and since Appellant preserved his exceptions and objections by timely filing same, the Trial Court erred in granting Appellee’s Motion For Summary Judgment in view of the deficiencies and/or defects contained in said Motion For Summary Judgment and in view of Appellant’s responses and affidavit thereto, which created genuine issues of material fact.

Since Appellee filed no further definitive evidence controverting Appellant’s evidence proffered in connection with his response to said Motion, genuine issues of material fact existed concerning Appellant’s claims of negligence and etc. which precluded the Trial Court from granting a summary judgment. The Trial Court, in resolving the issues of whether Appellee carried its burden, must view all evidence proffered by Appellant as true and all reasonable inferences, including any doubts, must be given to Appellant.  Ergo the trial court was compelled to deny Appellee’s Motion For Summary Judgment.

          Mondesir failed to specify any particular genuine issue of material fact in his appellate brief.  His brief completely fails to identify any factual dispute, and it fails to present any argument about why disputed facts in this case preclude judgment as a matter of law as to any particular cause of action.  See Tex. R. Civ. P. 166a(c).  His brief also provides no citations to case law.

While this Court recognizes that we must construe the rules “reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose[s] of the rule[s],” Republic Underwriters, Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997) (internal quotation marks omitted)), we are not obligated or permitted to assume the advocate’s responsibility of developing arguments on appeal.  Jordan v. Jefferson Cnty., 153 S.W.3d 670, 676 (Tex. App.—Amarillo 2004, pet. denied); see also Tex. R. App. P. 38.9.  Accordingly, we hold that Mondesir has inadequately briefed this issue and, thus, waived it.  See Tex. R. App. P. 38.1(i); see also Stephens v. Dolcefino, 126 S.W.3d 120, 129 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. 2005).

To the extent Mondesir’s summary of the argument may be liberally construed to suggest that the trial court was required to deny the summary judgment as to the newly alleged causes of action in the second amended petition, we similarly hold that the issue is waived because it was inadequately briefed.  See Tex. R. App. P. 38.1(i); Stephens, 126 S.W.3d at 129.

Conclusion

          We affirm the judgment of the trial court.

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Michael Massengale

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Massengale and Nuchia.*

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*        The Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.