Charles W. Bishop, II v. John Sparks, M.D.; Ceasar Garcia, M.D.; Richard A. Martinez, M.D.; Mark Fitzgerald, M.D.; and Edward Camara, Jr.--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00831-CV

Charles W. BISHOP, II,

Appellant

v.

John C. SPARKS, M.D.; Cesar Garcia, M.D.;

Richard E. Martinez, M.D.; Mark Fitzgerald, M.D.; and Edward Camera, Jr.,

Appellees

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-05998

Honorable Rebecca Simmons, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 7, 2004

AFFIRMED

Appellant is an inmate in the Texas Department of Criminal Justice system, who sued appellees on a medical malpractice claim. The trial court granted appellees' joint motion to declare appellant a vexatious litigant, to dismiss, and for summary judgment and sanctions. Appellant filed a motion for new trial in which he raised a single complaint: he was prevented from presenting all of his summary judgment evidence because certain items of his legal correspondence "may" have been confiscated. Eight of the allegedly confiscated documents are contained within the clerk's records.

On appeal, appellant's sole argument is that because the trial court did not hold a hearing on his uncontroverted affidavit, which was attached to his motion for new trial, those facts should be taken as true; thus, he is entitled to a new trial. In his affidavit, appellant does not challenge the grounds upon which the trial court declared him a vexatious litigant, dismissed his lawsuit, or granted appellees' motion for summary judgment. Instead, he merely contends sixteen items of legal correspondence were confiscated. For the sake of argument only, we will assume appellant's legal correspondence was confiscated. However, this does not entitle appellant to a new trial.

Appellees moved for summary judgment on the grounds that appellant's cause of action was barred by the statute of limitations, he has filed numerous lawsuits in both state and federal court over the years, and he has been declared a vexatious litigant by at least one federal court. When, as here, the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex. 1989). The appellate court must affirm the summary judgment if any one of the movant's theories has merit. Id. Neither appellant's motion for new trial nor his appeal challenge any of the theories on which appellees moved for summary judgment. Accordingly, appellant has waived his right to complain of the trial court's ruling.

We overrule appellant's issue on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH