Kristofer Thomas Kastner v. Gutter Management Inc., Guttermaxx, L.P., Frank Fulco, Jack Heath, Russell Lund, and Jim McLaughlin--Appeal from 127th District Court of Harris County
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Affirmed and Memorandum Opinion filed August 3, 2010.
In The
Fourteenth Court of Appeals
NO. 14-09-00055-CV
KRISTOFER THOMAS KASTNER, Appellant
V.
GUTTER MANAGEMENT INC., GUTTERMAXX, L.P., FRANK FULCO, JACK
HEATH, RUSSELL LUND, AND JIM MCCLAUGHLIN, Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2007-26559
MEMORANDUM OPINION
The appellant brought suit against his former employer and related entities as well
as several other employees seeking to recover damages arising from an alleged assault
and allegedly false statements made to the Texas Board of Law Examiners regarding the
appellant’s application for a law license.
The trial court granted the no-evidence
summary judgment motions filed by the appellees. On appeal, the appellant asserts that
he raised more than a scintilla of evidence to rebut the no-evidence motions and that the
trial court erred in granting the motion without a hearing and in denying his motion for a
continuance. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Kristofer Thomas Kastner, the plaintiff in the trial court, brought suit
against his former employer, appellee/defendant Guttermaxx, L.P., and its affiliate,
appellee/defendant Gutter Management, Inc.
Kastner also brought suit against
appellee/defendant Frank Fulco, the owner of Guttermaxx and president of Gutter
Management, and appellees/defendants Jack Heath, Russell Lund, and Jim McClaughlin,1
individually, all of whom are employees of Guttermaxx. According to the live petition
dated April 8, 2008, Kastner was employed by Guttermaxx until his employment ended
in January 2006, following a dispute in which Heath allegedly ―grabbed‖ Kastner by the
arm during the dispute. Kastner alleged in his live petition that this conduct constituted
assault, which proximately caused damage to Kastner’s reputation, employment, and his
application for state licensure to practice law.
Kastner asserted that because his
employment was terminated, he lost his apartment and became homeless.
Kastner
claimed that Heath was acting as an agent and that Fulco, Guttermaxx, and Gutter
Management were liable for Heath’s conduct. From this conduct, Kastner claimed to
have suffered reputational damage, damage to his law licensure, damage to his
employment prospects, loss of income, personal and emotional damage, loss of
consortium, and future damages.
Kastner claimed in his petition to have filed assault charges against Heath for the
January 2006 incident. According to Kastner, at a court hearing on those charges, Heath
committed slander against him by falsely testifying under oath that he did not grab him.
Kastner also alleged that both Lund and McClaughlin committed slander against him at
the hearing on the assault charges by falsely testifying under oath that they denied seeing
Heath grab him. Kastner claimed that, under principles of respondeat superior, Fulco,
Throughout the record, this individual has been referred to as ―Jim McLaughlin‖ or ―Jim
McClaughlin.‖ We refer to this individual as ―Jim McClaughlin,‖ as reflected in the notice of appeal and
the trial court’s final judgment.
1
2
Guttermaxx, and Gutter Management were liable for the ―slander‖ committed by Heath,
Lund, and McClaughlin in their testimony at this hearing.
Kastner also claimed in his petition that, in the process of applying to the Texas
Board of Law Examiners for a license to practice law, he was required to disclose
Guttermaxx, Heath, Lund, and McClaughlin as his prior employers. Kastner alleged that
Lund and McClaughlin committed libel by making materially false statements to the
Board of Law Examiners. According to the petition, the statements referred to Kastner as
committing the offenses of criminal trespass, assault, and disorderly conduct and falsely
stated that the trial judge in the hearing for the assault charges implied that Kastner was
incompetent in filing charges against Heath.
Kastner also alleged that Fulco,
Guttermaxx, and Gutter Management, through Lund and McClaughlin as agents,
committed libel regarding these statements. Kastner claimed that all of the appellees
committed libel by making false statements to the Board of Law Examiners, indicating
that he was terminated for gross insubordination and that he ―possessed symptoms of bipolar disorder and or psychosis based on their personal knowledge and experience.‖
Kastner claimed that the statements negatively affected his licensure with the Board of
Law Examiners and proximately caused reputational damages, damage to his law license,
damage to his employment prospects, loss of income, personal and emotional damage,
loss of consortium, and future damages.
Kastner also claimed that Fulco, Guttermaxx and Gutter Management owed a duty
to supervise and ―maintain employees [t]hat do not commit crimes, intentional torts, and
libel employees and former employees‖ and breached that duty by negligently
supervising Heath, Lund, and McClaughlin. As evidence of this breach, in his pleading,
Kastner referred to the alleged false statements made by Heath, Lund, and McClaughlin
at the hearing on the assault charges, unspecified statements made to other unnamed
potential employers, and the statements made by Heath, Lund, and McClaughlin to the
Board of Law Examiners. Kastner claimed the following damages proximately caused
by the breach: loss of income, reputational damage, personal and emotional damage,
3
damage to his law licensure and future earning capacity, possible loss of consortium, and
exposure to future damage by disclosure of the statements.
The appellees each filed no-evidence motions for summary judgment on Kastner’s
claims. Kastner filed a single response to the no-evidence motions. Although the record
reflects that Kastner moved for a hearing on the motions and subsequently moved for a
continuance on the no-evidence motions, the trial court granted the appellees’ noevidence motions without an oral hearing. The trial court awarded a take-nothing final
judgment against Kastner and in favor of the defendants. Kastner now challenges that
final judgment.
II.
A.
ISSUES AND ANALYSIS
Did the trial court err in granting the no-evidence motions for summary
judgment?
In his first two issues, Kastner asserts that the trial court erred in granting the
appellees’ no-evidence motions for summary judgment. In reviewing a no-evidence
summary judgment, we ascertain whether the non-movant pointed out summaryjudgment evidence raising a genuine issue of fact as to the essential elements attacked in
the no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08
(Tex. 2002). In our de novo review of a trial court’s summary judgment, we consider all
the evidence in the light most favorable to the non-movant, crediting evidence favorable
to the non-movant if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the summary-judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When, as in
this case, the orders granting summary judgment do not specify the grounds upon which
the trial court relied, we must affirm the summary judgment if any of the independent
4
summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin,
22 S.W.3d 868, 872 (Tex. 2000).
1.
Did Kastner present sufficient summary-judgment evidence to raise a
genuine fact issue for his claims that the parties made allegedly false statements
to the Board of Law Examiners?
The appellees claimed in their no-evidence motions for summary judgment that
there was no evidence that the damages claimed by Kastner were proximately caused by
any of the allegedly false statements made to the Board of Law Examiners. The essence
of these statements, which Kastner characterizes as ―libelous per se,‖ include the
following:
Kastner committed criminal trespass, assault by threat, and disorderly
conduct,
The trial judge presiding over the hearing on criminal assault charges
implied that Kastner was incompetent for filing a charge against Heath,
Kastner ―possessed symptoms of bi-polar disorder and or psychosis based
on their personal knowledge and experience,‖ and
Kastner was terminated from his employment for gross insubordination.
A plaintiff who is a private figure may prevail upon showing that the defendant
negligently made a false statement that was defamatory. See Dolcefino v. Randolph, 19
S.W.3d 906, 917 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). However, even if
Kastner had proven that the statements made to the Board of Law Examiners were false,
Kastner could not prevail because he cannot prove the claimed damages. See Swate v.
Schiffers, 975 S.W.2d 70, 74 (Tex. App.—San Antonio 1998, pet. denied) (involving a
private-figure plaintiff who was libel-proof because of his already tarnished reputation
and could not prove the damages he alleged).
The appellees attached evidence demonstrating that in 2000, the Board of Law
Examiners made a preliminary determination that Kastner lacked the good moral
character required for admission to practice law and suffered from chemical dependency.
In making this determination, the Board of Law Examiners provided curative measures
5
for Kastner to follow and indicated that he could request a redetermination and that a
hearing would be held to determine whether those curative measures had been met. The
appellees submitted evidence from the Board of Law Examiners reflecting that in 2005,
Kastner had applied for reconsideration with the Board of Law Examiners and that
Kastner had failed to comply with the initial curative measures for the purpose of
reconsideration.
The evidence reflects that the Board of Law Examiners permitted
Kastner to submit evidence in support of additional curative measures at a hearing. The
appellees produced a letter from the Board of Law Examiners, dated January 29, 2007,
reflecting that written statements from Heath, which also were signed by Lund and
McClaughlin, would not be used in evidence against Kastner.
The appellees also
produced evidence in the form of discovery responses from the Board of Law Examiners
indicating that the investigation of Kastner’s application for admission was still ongoing.
Kastner’s summary-judgment proof in response to the no-evidence motions
consisted of over fifty exhibits spanning over four hundred pages. In response to the noevidence motions, Kastner referred generally to a ninety-one-page document entitled
―Legal Opinion of Kristofer Thomas Kastner‖ (hereinafter ―Legal Opinion‖). Kastner
did not cite any specific facts or refer to specific portions of the Legal Opinion for
support in his response. The non-movant may not merely make reference to summary
judgment evidence in order to avoid summary judgment granted in favor of the movant.
See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341–43 (Tex. 1993)
(plurality op.) (providing that a reviewing court cannot ―read between the lines, infer or
glean from the pleadings or proof‖). Kastner also cited several exhibits that he claimed
were admitted into evidence at a hearing before the Board of Law Examiners and
pertained to his licensure, including an affidavit and letter prepared by Kastner relating to
his criminal assault charges against Heath, Heath’s responses to Kastner’s requests for
discovery, and statements from two people regarding the alleged assault. He claims this
evidence is proof that the Board of Law Examiners used the statements of Guttermaxx
employees against him.
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Kastner also referred to a letter from the Board of Law Examiners, dated August 7,
2008, which he claims states that his employment history may be evidence of a negative
moral character trait, for which he claims he has ―lost wages as a lawyer and reputation‖
as a result of the appellees’ statements to the Board of Law Examiners. However, this
letter states that a hearing on Kastner’s licensure had been delayed because of multiple
lawsuits initiated by Kastner against the Board of Law Examiners, Guttermaxx, and
Kastner’s former attorneys who represented him at an initial hearing before the Board of
Law Examiners. This same letter from the Board of Law Examiners reflects that Kastner
had yet to have complied with the Board’s requests for an ―Authorization and Release
Form,‖ apparently required by the Board of Law Examiners for review.
Finally, in his response, Kastner referred to a letter dated October 24, 2008,
pertaining to a notice of hearing as evidence that the Board’s investigation was complete
and that the hearing had been held. However, Kastner does not cite where this letter is
located in over 400 pages of summary-judgment evidence attached to his response. See
id. (providing that a reviewing court cannot ―read between the lines, infer or glean from
the pleadings or proof‖ and that a non-movant may not merely reference summary
judgment evidence in order to avoid summary judgment granted in favor of movant).
As of the date summary judgment was granted, Kastner had not produced
evidence raising a genuine issue of fact that the Board of Law Examiners had completed
its investigation or made a determination as to Kastner’s admission to practice law or
considered the statements as evidence against him.2 Without evidence of injury, the trial
court’s order granting summary judgment against Kastner was proper. See Swate, 975
S.W.2d at 75.
2
By reply brief, Kastner attached as an appendix a document that Kastner claims is evidence that
he has appealed the Board’s decision. Although Kastner attached a letter, dated May 22, 2009, relating to
an appeal of a Board of Law Examiners decision to his reply brief, we may consider only those
documents contained in the record and may not look to documents attached as exhibits or appendices to
briefs or motions not in the record. See TEX. R. APP. P. 38.1(f); 38.1(h); 34.1; see also Silk v. Terrill, 898
S.W.2d 764, 766 (Tex. 1995); Sewell v. Adams, 854 S.W.2d 257, 259, n.1 (Tex. App.—Houston [14th
Dist.] 1993, no writ).
7
Because the Board’s investigation into Kastner’s moral character was still ongoing
at the time the trial court granted summary judgment, the appellees each claimed that
Kastner’s claims for damages regarding all statements made to the Board of Law
Examiners were not ripe. An administrative action must be final before it is ripe for
judicial review. See City of El Paso v. Madero Dev., 803 S.W.2d 396, 398–99 (Tex.
App.—El Paso 1991, writ denied). A claim is ripe when, at the time a lawsuit is
commenced, the facts have developed sufficiently to demonstrate that an injury has
occurred or is likely to occur rather than being contingent or remote. See Patterson v.
Planned Parenthood of Houston and Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998).
Kastner complains on appeal that the appellees’ claim of ripeness lacks merit because he
produced letters and his Legal Opinion as well as evidence of lost wages, discoverability,
and associated damages.
However, Kastner has not presented any evidence
demonstrating that the Board’s investigation was final so that he may seek judicial
review. See, e.g., Kastner v. Tex. Bd. of Law Exam’rs, 278 F. App’x 346, No. 07-51145,
2008 WL 2048326, at *2 (5th Cir. May 14, 2008) (concluding that Kastner’s challenge
for purported denial of admission to state bar was not ripe for judicial review because the
board had not yet made a final decision on the matter); Rea v. State, 297 S.W.3d 379, 384
(Tex. App.—Austin 2009, no pet.) (providing that because an administrative agency had
not made a final decision, there was no final appealable decision).
On this basis,
Kastner’s claims for damages relating to allegedly false statements made to the Board of
Law Examiners were not shown to be ripe. Therefore, the trial court did not err in
granting summary judgment against Kastner on his claims for false statements given to
the Board of Law Examiners.
2.
Did Kastner present sufficient summary-judgment evidence to raise a
genuine fact issue as to each element of his claims for negligent supervision?
Kastner asserted claims against Fulco, Guttermaxx, and Gutter Management for
negligent supervision of Heath, Lund, and McClaughlin, referring to the alleged assault
by Heath, the allegedly false statements to the Board of Law Examiners, and the
8
allegedly false testimony at the criminal hearing on the assault charges. To prevail on his
claims for negligent supervision, Kastner must prove that (1) Fulco, Guttermaxx, and
Gutter Management owed him a legal duty to supervise employees, (2) that Fulco,
Guttermaxx, and Gutter Management breached that duty, and (3) that the breach
proximately caused his injuries. See Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584
(Tex. App.—Houston [14th Dist.] 2005, no pet.). To establish that conduct by Fulco,
Guttermaxx, and Gutter Management was the proximate cause of his injuries, Kastner
also must show that the parties’ actions in supervising Heath, Lund, and McClaughlin
were the cause-in-fact of his injuries and that the assault, the testimony, and statements to
the Board of Law Examiners were foreseeable consequences of Fulco’s, Guttermaxx’s,
and Gutter Management’s supervision of the individuals. See id.; Wrenn v. G.A.T.X.
Logistics, Inc., 73 S.W.3d 489, 496 (Tex. App.—Fort Worth 2002, no pet.).
In no-evidence motions for summary judgment, Fulco and Gutter Management
denied employing Kastner. Fulco claimed to be a limited partner of Guttermaxx; Gutter
Management claimed to be a general partner of Guttermaxx. In its no-evidence motion
for summary judgment, Guttermaxx asserted that it did not authorize either the statements
to the Board of Law Examiners or the alleged assault nor was the assault within the scope
of Heath’s employment. For proof of employment, Kastner referred generally to the
following evidence in his response without citing where this evidence could be found
within the summary-judgment proof he produced: his Legal Opinion; ―statements of
Guttermaxx dated 8/26/06/ 08/29/06, and 09/02/06 which show the plaintiff was
employed by Guttermaxx,‖ which Kastner did not identify as exhibits attached as
summary-judgment evidence; and cancelled checks from Guttermaxx, which Kastner
indicated he was awaiting in response to discovery.
The proof offered by Kastner failed to raise a genuine issue of material fact
regarding the allegations of negligent supervision. See Knight, 167 S.W.3d at 585. None
of the evidence demonstrates that Kastner was employed by Fulco or Gutter
Management.
To the contrary, the evidence to which Kastner referred appears to
9
demonstrate that he was employed only by Guttermaxx. Furthermore, even if Kastner’s
evidence demonstrated he was employed by both Gutter Management and Fulco, Kastner
presented no evidence that Fulco, Gutter Management, or Guttermaxx knew of, or
authorized, the alleged assault, the statements to the Board of Law Examiners, or the
testimony at the hearing on assault charges or any evidence that the parties could have
intervened. See id. On this basis, Kastner has presented no proof that any negligent
supervision of Heath, Lund, or McClaughlin was the cause-in-fact of Kastner’s alleged
injuries or that any of the alleged damages were a foreseeable consequence of negligent
supervision of the employees. See id. Because Kastner did not produce any summaryjudgment evidence to raise a genuine issue of material fact regarding negligent
supervision of Heath, Lund, and McClaughlin, the trial court properly granted summary
judgment on Kastner’s negligent supervision claim. See id.
3.
Did Kastner present sufficient summary-judgment evidence to raise a
genuine fact issue as to each element of his claims based on respondeat
superior?
Fulco, Guttermaxx, and Gutter Management in each of their no-evidence motions
for summary judgment asserted that they were not liable to Kastner under a theory of
respondeat superior for the alleged assault and the allegedly false statements made to the
Board of Law Examiners.
To hold an employer liable for tortious actions of its
employees, a claimant must prove the following: (1) an agency relationship existed
between the employee (the tortfeaser) and the employer; (2) the employee committed a
tort; and (3) the tort was in the course and scope of the employee’s authority. See Baptist
Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). A tort is within the
course and scope of an employee’s authority if his action (1) was within the employee’s
general authority; (2) was in furtherance of the employer’s business; and (3) was for the
accomplishment of the object for which the employee was hired. Knight 167 S.W.3d at
583.
10
In their no-evidence motions, Fulco and Gutter Management generally denied
employing Kastner and denied liability for the alleged assault under principles of
respondeat superior. Similarly, Guttermaxx denies liability for the alleged assault under
the theory of respondeat superior, claiming that it did not authorize any assault.
Generally, commission of an assault is not within the course and scope of an employee’s
authority. Tex. & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 197, 247 S.W.2d 236, 239
(1952); Knight, 167 S.W.3d at 583. However, an assault by an employee will be found to
be within the scope of his employment when the assault is of the same general nature as
the conduct authorized by the employer or is incidental to the conduct authorized. See
Smith v. M. Sys. Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112, 114 (1957); Knight,
167 S.W.3d at 583. Therefore, if an employer places an employee in a position that
involves the use of force, so that the act of using force is in the furtherance of the
employer’s business, the employer can be found liable for its employee’s actions even if
the employee uses greater force than necessary. Hagenloh, 151 Tex. at 197, 247 S.W.3d
at 239; Knight, 167 S.W.3d at 583.
In response to the no-evidence motions for summary judgment, Kastner referred
generally to his Legal Opinion for support that the assault occurred in the scope of
Heath’s work as a national call center employee for Guttermaxx and in furtherance of
Guttermaxx’s objectives for which Heath was hired.
However, the Legal Opinion
contains a description of the dispute between Heath (a national call center manager) and
Kastner, (an employee) as arising from a disagreement over client ―leads.‖ Kastner
presented no evidence that the use of force was within Heath’s scope of employment as
manager of a national call center for Guttermaxx. See Knight, 167 S.W.3d at 584;
Wrenn, 73 S.W.3d at 494–95. Considering the evidence in the light most favorable to
Kastner, as the non-movant, none of the evidence presented by Kastner creates a fact
issue as to whether the assault was in any way authorized by Guttermaxx, Fulco, or
Gutter Management. See Knight, 167 S.W.3d at 584; Wrenn, 73 S.W.3d at 494.
11
Likewise, in the no-evidence motions, Fulco, Guttermaxx, and Gutter
Management each denied authorizing any statements made to the Board of Law
Examiners.
Kastner alleged that portions of the statements to the Board of Law
Examiners were made on Guttermaxx stationery and that Lund, Heath, and McClaughlin
listed the titles of their positions in the statements made to the Board of Law Examiners.
However, considering these facts in the light most favorable to the non-movant as
demonstrating authority to make the statements to the Board of Law Examiners, Kastner
presented no evidence that Fulco or Gutter Management employed Lund, Heath, and
McClaughlin or that the statements were made in the course and scope of employment as
being made either in furtherance of Gutter Management or Fulco’s businesses. See
Knight, 167 S.W.3d at 583 (providing that a tort is within an employer’s course and scope
of authority if tort was committed within the employee’s general authority, in furtherance
of the employer’s business, and to accomplish an ends for which the employee was
hired). Furthermore, as previously discussed, Kastner has not demonstrated that he could
prevail in a case based on the statements made to the Board of Law Examiners because
he could not prove the claimed damages stemming from the statements. See Swate, 975
S.W.2d at 74 (involving a private-figure plaintiff who could not prove the damages he
alleged).
Kastner failed to produce any summary-judgment evidence to raise a genuine
issue of material fact as to whether Heath acted within the course and scope of his
employment when he allegedly assaulted Kastner. See Knight, 167 S.W.3d at 584.
Similarly, Kastner failed to produce any summary-judgment evidence that Fulco and
Gutter Management authorized any statements made by its employees. See id. Even if
Kastner had demonstrated that the statements made to the Board of Law Examiners were
authorized by Guttermaxx, as we have determined, Kastner has not demonstrated that he
suffered the claimed damages. See Swate, 975 S.W.2d at 74. Therefore, we conclude
that the trial court did not err in granting summary judgment against Kastner on the
12
claims against Fulco, Guttermaxx, and Gutter Management under principles of
respondeat superior.
4.
Did Kastner present sufficient summary-judgment evidence to raise a
genuine fact issue for his claims that the parties offered allegedly false testimony
in a prior criminal hearing?
All of the appellees asserted in their no-evidence motions for summary judgment
that they were not liable to Kastner for any allegedly false testimony at the criminal
hearing on the assault charges on the basis that those who testified at the criminal hearing
received ―immunity.‖ The summary-judgment record reflects that the statements Kastner
characterizes as slander per quod were made in in the course of prior criminal
proceedings relating to the assault charge against Heath. All proceedings in courts of this
state receive absolute privilege and cannot serve in any way as grounds for an action
involving defamation. Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 132 (Tex.
App.—Houston [14th Dist.] 1994, no writ). Nothing in the summary-judgment record
suggests that any of the statements characterized by Kastner as slander were made
outside the context of the criminal proceedings. See id. Accordingly, the trial court did
not err in granting summary judgment against Kastner on these claims. See id.
5.
Did Kastner present sufficient summary-judgment evidence to raise a
genuine fact issue as to each element of his claim for the assault?
Heath, Lund, and McClaughlin asserted in their no-evidence motion for summary
judgment that there is no proximate cause for the assault damages alleged by Kastner. To
prevail on a claim for civil assault, the plaintiff must establish the same elements required
for criminal assault. Johnson v. Davis, 178 S.W.3d 230, 240 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied). Under Texas Penal Code section 22.01(a)(3), an assault occurs
when a person intentionally or knowingly causes physical contact with another when the
person knows or should reasonably believe that the other will regard the contact as
offensive or provocative. TEX. PENAL CODE ANN. § 22.01(a)(3) (Vernon Supp. 2009).
Kastner responded to the no-evidence motions with the following statements:
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The plaintiff has offered a legal opinion in this cause. The legal opinion
provided more than a scintilla of evidence to show the plaintiff has been
damaged by the grab of Mr. Heath ad [sic] had his reputation employment
and law license damaged.
Kastner’s response to the no-evidence motions included no legal argument as to
the elements for the alleged assault. See Johnson, 73 S.W.3d at 207 (providing that the
―minimum requirements of Rule 166a(i)‖ included argument and evidence addressing the
particular issue raised in the motion for summary judgment). On appeal, Kastner makes
reference to numerous pages within his Legal Opinion as raising both legal argument and
facts.
A motion does not state grounds for summary judgment if it merely makes
reference to an accompanying document of authorities that contains grounds for summary
judgment. See McConnell, 858 S.W.2d at 341 (providing that a motion for summary
judgment must ―stand or fall on the grounds expressly presented‖); Coastal Cement Sand
Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 565 (Tex. App.—Houston
[14th Dist.] 1997, writ denied) (involving a memorandum of authorities in support of
grounds not expressly presented in motion for summary judgment).
Even if Kastner had produced sufficient reasons as to why summary judgment
would have been improper, he still was required to support the reasons with evidence.
San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 329 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) (―If a non-movant’s response fails to set forth valid reasons why
summary judgment should not be granted and if the motion and summary judgment
evidence show that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law on the grounds asserted in the motion, then the
trial court should simply grant summary judgment.‖). To the extent Kastner asserted in
the motion that he provided more than a scintilla of evidence, broad conclusory
statements without factual support are neither credible nor constitute valid summaryjudgment evidence. Doherty v. Old Place, Inc., —S.W.3d —, No. 14-08-00494-CV,
2010 WL 2852850, at *3 (Tex. App.—Houston [14th Dist.] July 22, 2010, no pet. h.) (op.
on reh’g). Aside from the general reference to his Legal Opinion, Kastner did not
14
specifically refer to any other evidence in response to the no-evidence motions for
support of this claim. Although Kastner urges this court to consider the Legal Opinion,
legal opinions and conclusions made within an affidavit attached as summary-judgment
evidence are not considered competent summary-judgment evidence and are insufficient
to raise an issue of fact in response to a motion for summary judgment. See Mercer v.
Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984); Green v. Unauthorized Practice of Law
Comm., 883 S.W.2d 293, 297 (Tex. App.—Dallas 1994, no writ).
Furthermore, Kastner’s general reference to his Legal Opinion within the
voluminous summary-judgment record that does not direct the trial court and the parties
to the evidence on which the movant relies is insufficient. See McConnell, 858 S.W.2d at
341 (―[I]ssues a non-movant contends avoid the movant’s entitlement to summary
judgment must be expressly presented by written answer to the motion or by other written
response to the motion and are not expressly presented by mere reference to summary
judgment evidence.‖); see also Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—
Houston [1st Dist.] 1996, no writ) (holding trial court did not abuse its discretion in
refusing to consider 500-page deposition attached to summary-judgment motion when
party did not direct trial court to portions on which party was relying). A trial court does
not abuse its discretion when it does not consider summary-judgment proof to which a
movant does not specifically direct the trial court’s attention. See Guthrie, 934 S.W.2d at
826. Kastner has not presented any evidence demonstrating that the damages alleged
were proximately caused by Heath’s alleged assault on Kastner. On this basis, the trial
court did not err in granting summary judgment against Kastner on his claim for assault.
See id.
Kastner challenges the no-evidence summary-judgment motions on the basis that
the motions are unsigned; however, the record reflects that the motions are signed. Thus,
Kastner’s argument lacks merit.
15
Kastner also asserts that in granting the no-evidence motions, the trial court
granted more relief than requested. He claims that the no-evidence motions do not
address the statements allegedly made by McClaughlin and Lund. The record reflects
that each of the motions addressed the alleged false testimony of McClaughlin and Lund.
To the degree Kastner challenges the trial court’s granting of summary judgment
as being in violation of the Texas and United States Constitutions in his reply brief,
Kastner has provided no argument, analysis, citations to the record, or legal authority. By
failing to brief this argument, Kastner has waived it. See TEX. R. APP. P. 38.1(h); San
Saba Energy, L.P., 171 S.W.3d at 338 (holding that even interpreting briefing
requirements liberally and reasonably, a party asserting error on appeal must still put
forth some specific argument and analysis citing the record and authorities in support of
the party’s argument).
By reply brief, Kastner also contends that because the record does not contain the
trial court’s order on summary judgment for Gutter Management Inc., final judgment in
this case was ―impossible,‖ void, invalid, unconstitutional, and in violation of the Texas
and United States Constitutions.
The record contains a final judgment stating the
following:
On December 12, 2008, separate orders granting motions for
summary judgment by all parties and causes of action were signed. This
Final Judgment is signed.
It is therefore ORDERED, ADJUDGED and DECREED that
KRISTOFER THOMAS KASTERNER [sic] take nothing as to
GUTTERMAXX, L.P. and its general partner GUTTER MANAGEMENT
INC., FRANK FULCO, JACK HEATH, RUSSEL LUND, and JIM
MCCLAUGHLIN. All costs are taxed to Plaintiff.
To the extent Kastner’s complaint could be construed as a challenge to the finality of the
trial court’s judgment, the judgment states with unmistakable clarity that the trial court
granted summary-judgment motions as to all parties and causes of action, thereby
disposing of all claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.
16
2001). Therefore, the judgment is a final judgment from which a party may appeal. See
id. We overrule Kastner’s first and second issues.
B.
Did the trial court err in granting the no-evidence motions for summary
judgment without a hearing and in failing to grant a continuance on the
hearing for summary judgment?
In his third issue, Kastner contends that the trial court erred in granting the no-
evidence motions without a hearing. In his fourth issue, Kastner claims the trial court
erred in failing to grant a continuance for a summary-judgment hearing.
A no-evidence motion for summary judgment may be filed and heard after
―adequate time for discovery.‖ See TEX. R. CIV. P. 166a(i). A party opposing such a
motion, claiming inadequate time for discovery as in this case, must file either an
affidavit explaining the need for further discovery or a verified motion for continuance.
See TEX. R. CIV. P. 166a(g); Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200–01
(Tex. App.—Houston [14th Dist.] 2001, no pet.). A trial court may rule on summaryjudgment motions without holding a hearing. Bowles v. Cook, 894 S.W.2d 65, 67 n.1
(Tex. App.—Houston [14th Dist.] 1995, no writ) (involving a trial court that properly
granted summary judgment without a hearing). The trial court can decide a motion for
summary judgment on submission without an appearance by the attorneys before the
court. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). On
this basis, Kastner’s third issue is overruled.
A party who opposes summary judgment may file a motion to continue the
summary-judgment hearing in order to conduct additional discovery. TEX. R. CIV. P.
166a(g). The grant or denial of a motion for continuance is within the sound discretion of
the trial court. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). A motion for
continuance shall not be granted except for sufficient cause supported by affidavit or by
consent of the parties or by operation of law. TEX. R. CIV. P. 251.
17
According to Kastner’s motion, he sought a continuance to obtain additional
discovery, including a deposition of a Board of Law Examiners employee and an order
from the Board of Law Examiners as to his pending law license on the basis that his
moral character was currently unknown, all of which Kastner alleged was dispositive of
the no-evidence motions. However, the record does not reflect that the trial court granted
or denied this motion. A party moving for continuance of a summary-judgment hearing
or submission must obtain a written ruling on its motion in order to preserve the
complaint for appellate review. See TEX. R. APP. P. 33.1(a); Mitchell v. Bank of Am.,
N.A., 156 S.W.3d 622, 625–26 (Tex. App.—Dallas 2004, pet. denied); Direkly v. ARA
Devcon, Inc., 866 S.W.2d 652, 656 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d
w.o.j.). Kastner does not point to any place in the record, and our independent review of
the record does not reflect, that Kastner secured a ruling from the trial court on this
motion. See Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 492–93
(Tex. App.—Fort Worth 1999, pet. denied). Although in his reply brief, Kastner refers to
the trial court’s docket sheet, reflecting the entry ―M/Continuance denied,‖ a notation in a
docket sheet is not a final order or judgment. See In re Bill Heard Chevrolet, Ltd., 209
S.W.3d 311, 315 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (―A docketsheet entry cannot contradict or take the place of a written order or judgment.‖).
Accordingly, Kastner has failed to preserve this complaint for appellate review.
Notwithstanding the failure to preserve error, to the degree Kastner asserts that by
denying his motion for continuance and in granting the no-evidence motions, the trial
court has violated provisions in the Texas and United States Constitutions, Kastner has
failed to provide legal authority, citations to the record, or analysis in support of these
arguments or shown that he raised these complaints in the trial court. See TEX. R. APP. P.
38.1(h); San Saba Energy, L.P, 171 S.W.3d at 338. Therefore, these arguments are
waived. Kastner’s fourth issue is overruled.
18
Having overruled each of appellant’s issues, we affirm the trial court’s judgment.
/s/
Kem Thompson Frost
Justice
Panel consists of Justices Frost, Boyce, and Sullivan.
19
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