in the Interest of R.H.H. and C.E.H., Children ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-08-00113-CV
IN THE INTEREST OF R.H.H. and C.E.H., Children
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 1997-CI-07786
Honorable David A. Berchelmann, Jr., Judge Presiding1
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: March 11, 2009
DISMISSED IN PART; AFFIRMED IN PART
Jon Hendricks appeals several orders entered in the underlying proceeding in which both
parties are seeking to modify the parent-child relationship. Jon presents nine points of error in his
brief. We first address our jurisdiction to consider these issues.
1
… The Honorable David A. Berchelmann, Jr. signed the Order Granting Monica Hendrick’s Motion for No
Evidence Summary Judgment and Severance as to Respondent’s Motion for Sanctions Against Petitioner and Petitioner’s
Attorneys, and the Honorable Janet Littlejohn signed the Order Partially Granting Petitioner’s Motion to Sever and for
No Evidence Summary Judgment.
04-08-00113-CV
JURISDICTION
Generally, appeals may be taken only from a final judgment. Mason v. Mason, 256 S.W.3d
716, 718 (Tex. App.—Houston [14th Dist.] 2008, no pet.). This court does not have jurisdiction to
consider appeals from interlocutory orders unless expressly permitted by statute. Id.
Although the trial court has not signed a final judgment in the underlying proceeding, the trial
court did sign orders granting two no-evidence motions for summary judgment which it then severed
from the underlying proceeding. The severance of these orders made them final for purposes of
appeal. See City of Laredo v. Leal, 161 S.W.3d 558, 562 n.2 (Tex. App.—San Antonio 2004, pet.
denied). Having reviewed the nine points of error raised by Jon, however, we conclude that this
court has jurisdiction to consider only his fifth and seventh points of error which challenge the trial
court’s orders on the no-evidence motions for summary judgment. Jon’s remaining points of error
relate to either interlocutory orders or the pending proceeding and are, therefore, dismissed for lack
of jurisdiction.
NOTICE OF HEARING
In his fifth point of error, Jon contends the trial court erred in granting the no-evidence
summary judgment as to his claim for sole managing conservatorship because he did not have proper
notice of the summary judgment hearing. We disagree.
A “hearing on a motion for summary judgment may be set as early as” the 24th day after a
motion is served by mail. Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994); Emerson v. Chase
Manhatten Mortgage Corp., No. 04-05-00323-CV, 2005 WL 3477862, at *1 (Tex. App.—San
Antonio Dec. 21, 2005, no pet.) (mem. op.). “When computing the allowable time for service, the
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04-08-00113-CV
actual day of service is not counted, but the day of the hearing is included in the computation.”
Emerson, 2005 WL 34477862, at *1 (citing Lewis, 876 S.W.2d at 316).
Monica filed and sent, via certified mail, the motion for summary judgment on February 8,
2008. Accordingly, the day of service was February 8, 2008. Excluding that day, exactly twenty-
four days elapsed when counting from February 9 to March 3, the day of the hearing. Accordingly,
Jon had proper notice of the summary judgment hearing, and his fifth point of error is overruled.
EVIDENCE OF SANCTIONABLE CONDUCT
In his seventh point of error, Jon complains that the trial court erred in granting Monica’s no-
evidence motion for summary judgment on his second amended motion for sanctions. Jon asserts
that he filed a response and presented evidence of the sanctionable conduct. In his brief, however,
Jon globally references his 105 page pleading and his attorney’s business records and affidavit. Jon’s
entire argument on this issue in his brief consists of the following:
Jon responded to Monica’s motion for summary judgment by filing with the
trial court two definitive documents: first is Respondent’s Second Amended and
Supplemental Motion for Sanctions Against Petitioner’s Attorneys served April 26,
2008, I/II Suppl. 0159-0265 (a 105 page pleading); second is Jon’s attorney’s
business records and affidavit, cited as beginning at I/III C.R. 0099 and ending on
page 0947 in III/III C.R. These hundreds of pages of business records are evidence
of the sanctions complained of by Jon which are discussed, set forth, and identified
in the 105 page related motion for sanctions (cited above). While Jon cannot
regurgitate the contents herein, the motion maps out in great detail the contents of the
business records to show sufficient evidence requiring a reversal in the court’s ruling
that Jon had no evidence in support of his allegations of sanctions made against
Monica and Monica’s attorneys. Any place in the motion will provide this Court of
Appeals with a starting point of inquiry and analysis of the evidence Jon has. The
motion and business records (along with Jon’s attorney’s affidavit speak for
themselves).
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On appeal, Jon has a duty to show that the record supports his contentions. Blake v. Intco
Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San Antonio 2003, no pet.). “As an appellate
court, we are not required to search the record for a scintilla of evidence raising a material fact issue
without more specific guidance.” Id. Accordingly, Jon’s seventh point of error is overruled.
CONCLUSION
Jon’s fifth and seventh points of error are overruled. The Order Partially Granting
Petitioner’s Motion to Sever and for No Evidence Summary Judgment signed on May 22, 2008, and
the Order Granting Monica Hendrick’s Motion for No Evidence Summary Judgment and Severance
as to Respondent’s Motion for Sanctions Against Petitioner and Petitioner’s Attorneys signed on
September 3, 2008, are affirmed. Because we do not have jurisdiction to consider Jon’s remaining
points of error, they are dismissed.
Catherine Stone, Chief Justice
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