Pastor Wilbert Antonio Coleman v. SBC Communications, Inc.--Appeal from 37th Judicial District Court of Bexar County

No. 04-99-00889-CV

Pastor Wilbert Antonio COLEMAN,
Appellant
v.
SBC COMMUNICATIONS, INC.,
Appellee
From the 37th Judicial District, Bexar County, Texas
Trial Court No. 99-CI-4051
The Honorable Andy Mireles, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 19, 2000

AFFIRMED

Pastor Wilbert Antonio Coleman appeals the trial court's granting of SBC Communications, Inc.'s no-evidence motion for summary judgment. We affirm the judgment.

Background

Coleman brought suit against SBC Communications, Inc., alleging that SBC had "defraud[ed him] the equal right to rehire afforded to other former employees," and seeking $200,000 in damages, plus costs, and an order requiring SBC to remove him from nonrehirable status. He claimed SBC's actions violated his rights under the Fourteenth Amendment to the United States Constitution and Texas Civil Practices and Remedies Code, section 17.042. SBC filed a no-evidence motion for summary judgment on the grounds that Coleman failed to state a cause of action. The trial judge granted the motion. Coleman appeals.

Notice

In his first issue, Coleman claims that he did not receive notice of the summary judgment hearing. Coleman, however, has failed to properly preserve this alleged error for our review. The Texas Rules of Civil Procedure provide that "[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Tex. R. Civ. P. 166a(c). Accordingly, a non-movant must take some proactive measure to ensure his failure to receive notice is preserved for appellate review. The Rules allow a non-movant to correct a movant's failure to provide him or her with notice of a summary judgment hearing at a motion for new trial hearing, or upon its overruling, by the appellate court on appeal. See Tex. R. Civ. P. 324(b); Tivoli Corp. v. Jewelers Mut. Ins. Co., 932 S.W.2d 704, 710 (Tex. App. San Antonio 1996, writ denied). Because Coleman did not file a motion for new trial, we may not address his notice complaint for the first time on appeal. We therefore overrule his first issue.

Summary Judgment

In the remainder of his issues, Coleman argues that he does have evidence which should preclude summary judgment. Coleman waived these issues, however, by failing to present them in a response to SBC's motion for summary judgment. See Tex. R. Civ. P. 33.1; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675 (Tex. 1979); Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 801 (Tex. App. Houston [14th Dist.] 1998, no pet.).We note that Coleman could have attacked the sufficiency of SBC's motion for summary judgment, but he failed to do so either in the trial court or on appeal. Although SBC's motion for summary judgment purported to be a no-evidence motion, it was in fact, a motion claiming Coleman's pleadings were deficient for failure to state a cause of action. Whether a party's pleadings fail to state a cause of action, however, may not be resolved by summary judgment. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). Rather, a non-existent cause of action may be dismissed by summary judgment only after the complaining party has been given an opportunity to amend his or her pleadings through a special exception. See Tex. R. Civ. P. 91; Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998); Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974); Timothy Patton, Summary Judgments in Texas 28 (1996). But, where the non-movant neglects to complain to the trial court that the summary judgment motion is a wrongful attack on his pleadings, the question may not be raised for the first time on appeal. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-210 (Tex. 1990); Hartsfield v. Wisdom, 843 S.W.2d 221, 224 (Tex. App. Amarillo 1992, writ denied).

Coleman did not attack the sufficiency of SBC's motion for summary judgment. We, therefore, affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH