Rosser B. Melton, Jr. v. Wells Fargo Bank, N.A., and Thomas H. Elliott ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00512-CV
ROSSER B. MELTON, JR. APPELLANT
V.
WELLS FARGO BANK, N.A., AND APPELLEES
THOMAS H. ELLIOTT
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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In seven issues, Appellant Rosser B. Melton, Jr., pro se, appeals the trial
court’s order granting summary judgment in favor of Appellees Wells Fargo
Bank, N.A., and Thomas H. Elliott. We will affirm.
In 1997, First State Bank of Texas issued a certificate of deposit to
“LIBERTY TRUST” and “FRANCES COUCH MELTON TRUSTEE.” In 2008,
1
See Tex. R. App. P. 47.4.
Wells Fargo2 paid the certificate of deposit by issuing a cashier’s check made
payable to “LIBERTY TRUST” and “FRANCES COUCH MELTON TTEE.”
Appellant asked Wells Fargo to cash the check, but it refused to do so because
Appellant was not a named payee on the check, nor did he demonstrate that he
was authorized to act on behalf of the payees. Appellant later sued Appellees for
fraud and conversion. Appellees filed a combined traditional and no-evidence
motion for summary judgment challenging each of Appellant’s claims, and the
trial court granted the motion.
In his sixth issue, Appellant argues that the trial court erred by granting
Appellees’ no-evidence motion for summary judgment.3 After an adequate time
for discovery, the party without the burden of proof may, without presenting
evidence, move for summary judgment on the ground that there is no evidence to
support an essential element of the nonmovant’s claim or defense. Tex. R. Civ.
P. 166a(i). The trial court must grant the motion unless the nonmovant produces
summary judgment evidence that raises a genuine issue of material fact. See id.
& cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
2
First State Bank of Texas merged with Wells Fargo in 2002.
3
When a party moves for summary judgment under both rules 166a(c) and
166a(i), we will first review the trial court’s judgment under the standards of rule
166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the
appellant failed to produce more than a scintilla of evidence under that burden,
then there is no need to analyze whether the appellee’s summary judgment proof
satisfied the less stringent rule 166a(c) burden. Id.
2
Generally, pleadings are not competent summary judgment evidence.
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.
1995). A response to a motion for summary judgment is a pleading and,
therefore, cannot constitute summary judgment evidence. See Nicholson v.
Mem’l Hosp. Sys., 722 S.W.2d 746, 749 (Tex. App.—Houston [14th Dist.] 1986,
writ ref’d n.r.e.); see also Watson v. Frost Nat’l Bank, 139 S.W.3d 118, 119 (Tex.
App.—Texarkana 2004, no pet.); Smith v. Hennessey & Assocs., 103 S.W.3d
567, 570 (Tex. App.—San Antonio 2003, no pet.).
Here, Appellant filed a response to Appellees’ motion for summary
judgment, but he did not attach any evidence in support of the response, nor did
he direct the trial court to any evidence located elsewhere in the record, including
the evidence that Appellees attached to their motion for summary judgment.
Because Appellant’s arguments contained in his response are not summary
judgment evidence, he did not meet his burden to produce evidence raising a
genuine issue of material fact as to any of the elements of his claims challenged
by Appellees. See Tex. R. Civ. P. 166a(i). We hold that the trial court did not err
by granting Appellees’ no-evidence motion for summary judgment on each of
Appellant’s claims. See, e.g., Watson, 139 S.W.3d at 119 (holding that trial court
was required to grant summary judgment because appellant did not support his
response with any evidence); see Wass v. Farmers Tex. Cnty. Mut. Ins. Co.,
Nos. 02-05-00036-CV, 02-05-00124-CV, 2006 WL 1281037, at *2 (Tex. App.—
3
Fort Worth May 11, 2006, no pet.) (mem. op.) (overruling party’s issues
challenging summary judgment because party “failed to produce any summary
judgment evidence in his response”); Sias v. Zenith Ins. Co., No. 08-02-00371-
CV, 2003 WL 21197046, at *3–5 (Tex. App.—El Paso May 22, 2003, pet. denied)
(holding that trial court properly granted no-evidence motion for summary
judgment because appellant failed to attach any summary judgment evidence to
his response), cert. denied, 540 U.S. 1124 (2004). We overrule Appellant’s sixth
issue. Having determined that the trial court properly granted Appellees
summary judgment on no-evidence grounds, we need not address Appellant’s
fifth issue arguing that the trial court erred by granting summary judgment on
traditional grounds. See Tex. R. App. P. 47.1.; Ford Motor Co., 135 S.W.3d at
600.
In his first, second, third, fourth, and seventh issues, Appellant argues that
the trial court violated his right to a jury trial by granting summary judgment, that
the trial court was biased against him because he is pro se, that the trial court
erred by not holding a hearing on Appellees’ motion for summary judgment, and
that remand is necessary because Appellees attached an affidavit to their motion
for summary judgment. Appellant failed to preserve these issues for appellate
review because he did not raise them in the trial court. See Tex. R. App. P.
33.1(a); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979) (reasoning that grounds opposing summary judgment are waived if not
4
raised in the trial court); see also Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
222 (Tex. 2002) (holding that nonmovant waived open courts argument by failing
to raise it in response to motion for summary judgment). We overrule Appellant’s
first, second, third, fourth, and seventh issues.
Having overruled Appellant’s dispositive issues, we affirm the trial court’s
order granting Appellees summary judgment.
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GARDNER, J.
DELIVERED: July 19, 2012
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