Johnny Lee Walker v. Vincent D. Callahan--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00095-CV

Johnny Lee WALKER,

Appellant

v.

Vincent D. CALLAHAN,

Appellee

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-11339

Honorable John D. Gabriel, Jr., Judge Presiding //

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 28, 2005

AFFIRMED

Appellee, Vincent Callahan, represented appellant, Johnny Lee Walker, at Walker s criminal prosecution and on the appeal from his conviction. Walker later sued Callahan for legal malpractice, and Callahan moved for summary judgment. The trial court rendered judgment in favor of Callahan and dismissed Walker s suit. We affirm.

TRIAL COURT S AUTHORITY TO RULE

In his first issue, Walker asserts Judge Gabriel did not have authority to dismiss his suit. Walker claims his lawsuit was assigned to the 45th Judicial District Court of Bexar County, several matters were heard by the Honorable Barbara Nellermoe, presiding judge of the 45th Judicial District Court, and he was totally satisfied with the 45th Judicial District Court as being the proper venue. Walker complains that he did not request a change of venue to Judge Gabriel s court, which is the 131st Judicial District Court of Bexar County. State district judges within a county may hear and determine a matter pending in any district or statutory county court in the county. See Tex. Gov t Code Ann. 74.094(a) (Vernon 2005). A judge may sign a judgment in any of the courts regardless of whether the case is transferred. Id. Therefore, Judge Gabriel had the authority to consider and rule on Callahan s motion for summary judgment.

OPPORTUNITY TO AMEND

In his second issue, Walker asserts the trial court erred in dismissing his lawsuit without first allowing him to amend his petition. Callahan moved for summary judgment on the basis of the waivers and stipulations signed in connection with Walker s plea of guilty in his criminal prosecution, the judgment of conviction on his guilty plea, and deemed admissions. Although Walker responded to the motion for summary judgment, he did not request an opportunity to amend his petition. Therefore, this issue presents nothing for our review.

FAILURE TO DETAIL AUTHORITY

In his third issue, Walker asserts the trial court abused its discretion by not detailing, in its order, the authorities upon which it relied in granting the summary judgment. Walker filed an initial request for findings of fact and conclusions of law, but he did not file a Notice of Past Due Findings. Ordinarily, the failure to give notice of past due findings waives the request for findings. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984); see Tex. R. Civ. P. 296, 297. However, Walker s suit was summarily dismissed prior to any hearing or trial. See Tex. Civ. Prac. & Rem. Code Ann. 13.001, 14.003 (Vernon 2002). Under these circumstances, the trial court has no duty to file findings of fact and conclusions of law. See Timmons v. Luce, 840 S.W.2d 582, 586 (Tex. App. Tyler 1992, no writ) (holding no duty to file findings after dismissal of inmate suit under Texas Civil Practice and Remedies Code chapter 13); see also Retzlaff v. Texas Dep t of Criminal Justice, 94 S.W.3d 650, 655 (Tex. App. Houston [14th Dist.] 2002, pet. denied) (holding same under Texas Civil Practice and Remedies Code chapter 14); see also Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994) (holding that findings of fact and conclusions of law have no place in a summary judgment proceeding ). FAILURE TO CONDUCT NEW TRIAL HEARING

In his fourth issue, Walker asserts the trial court erred by not conducting a hearing on his motion for new trial because such a hearing was necessary to adduce new facts not in the record. The denial of a motion for new trial is generally reviewed under an abuse of discretion standard. Washington v. McMillan, 898 S.W.2d 392, 394 (Tex. App. San Antonio 1995, no writ). A new trial hearing may be, and often is, necessary to develop a record based on a criminal defendant s post-conviction claim of ineffective assistance of counsel. See Ditto v. State, 898 S.W.2d 383, 386 (Tex. App. San Antonio 1995, no pet.). However, the underlying proceeding here is a civil lawsuit based upon an allegation of legal malpractice. In his motion for new trial, Walker asserted Judge Gabriel did not have authority to preside over and dismiss his suit, the trial court erred in dismissing his lawsuit without first allowing him to amend his petition, and the trial court abused its discretion by not detailing the authorities upon which it relied in granting the summary judgment. We have concluded none of these allegations amount to error on the trial court s part. Therefore, the trial court did not abuse its discretion by not conducting a new trial hearing.

FAILURE TO CONDUCT HEARING ON OBJECTIONSIn his fifth issue, Walker asserts the trial court erred by not ruling on his objections to Callahan s original answer. Walker objected that Callahan s answer was brought in bad faith and should be stricken. To present a complaint for appellate review, the record must reflect that the trial court (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule ... and the complaining party objected to the refusal. See Tex. R. App. P. 33.1(a)(2). The record does not indicate Walker objected to the trial court s refusal to rule on his objections; therefore, this issue presents nothing for our review.

CONCLUSION

We overrule Walker s issues on appeal, and affirm the trial court s judgment.

Sandee Bryan Marion, Justice