Troy Huckaby as next friend of Jacob Huckaby v. Mandy Nicole Bragg--Appeal from County Court at Law of Henderson County

NO. 12-05-00245-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TROY HUCKABY AS NEXT APPEAL FROM THE

FRIEND OF JACOB HUCKABY,

APPELLANT

V. COUNTY COURT AT LAW

MANDY NICOLE BRAGG,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

The trial court granted summary judgment for the defendant, Mandy Nicole Bragg, after the plaintiff, Troy Huckaby as next friend for Jacob Huckaby, failed to file a written response to Ms. Bragg s summary judgment motion. On appeal, Huckaby, appearing pro se, presents three issues contending the trial court erred in granting summary judgment, in overruling his motion for new trial, and in overruling his motion for the appointment of a guardian ad litem for Jacob Huckaby. We modify the judgment and affirm as modified.

Background

Plaintiff, Troy Huckaby, as next friend for his grandson, Jacob Huckaby, filed suit seeking damages for personal injuries alleged to have been sustained by Natalie Huckaby and Jacob Huckaby in an automobile collision that occurred on July 25, 2000. On August 8, 2002, citation was issued, and the trial court signed an order authorizing anyone over the age of eighteen not a party to the suit to serve the citation. The record reflects no further activity until February 7, 2003, when Huckaby requested reissuance of the citation and service by certified mail. Defendant, Mandy Nicole Bragg, was served by certified mail on September 26, 2003, fourteen months after suit was filed.

Ms. Bragg filed a general denial and a plea of the two year statute of limitations against Natalie Huckaby s claim, contending that Huckaby had failed to exercise due diligence in perfecting service on her.

The claims of Natalie Huckaby, individually, arising from the collision were resolved, and she was dismissed as a party plaintiff prior to any summary judgment proceedings.

Although Huckaby did not assert any claims or seek any relief in his individual capacity, Ms. Bragg s traditional motion for summary judgment addressed any potential claims of Troy Huckaby for damage to the Huckaby vehicle and for medical expense incurred on behalf of his grandson. In the same document, Ms. Bragg also sought a no evidence summary judgment on the claims of personal injury to Jacob Huckaby, a minor, contending that there was no evidence that Jacob Huckaby suffered any physical injury as a result of the accident.

On April 7, 2005, the trial court set the hearing on Ms. Bragg s motion for summary judgment on May 2, 2005. Huckaby failed to file any response to the motion for summary judgment, although he appeared personally and attempted to testify orally in opposition to the motion. The trial court granted Ms. Bragg s motion for summary judgment.

On May 31, 2005, Huckaby filed a motion for new trial wherein he stated that he had not filed a written response to Ms. Bragg s summary judgment motion because he believed he would be allowed to respond orally at the hearing. The trial court set the motion for new trial for a hearing on June 27, 2005. Before the hearing on his motion for new trial, Huckaby filed a response to Ms. Bragg s motion for summary judgment granted almost two months before. The response was a reiteration of the allegations in his petition with attached evidentiary exhibits. Only one of the exhibits was proper summary judgment evidence. Huckaby also filed a motion for the appointment of a guardian ad litem for Jacob Huckaby averring that he did not understand the law sufficiently to provide adequate representation for the minor child.

On June 28, 2005, the trial court denied Huckaby s motion for new trial. This appeal followed.

Traditional Motion for Summary Judgment

In his first issue, Huckaby contends that the trial court erred in granting an alleged final summary judgment by default when various issues of genuine material facts raised by Appellant s original petition were not addressed or disposed of by Appellee s summary judgment motion or by the trial court s summary judgment ruling.

Applicable Law

When a defendant moves for summary judgment on its affirmative defense, it must prove each element of its defense as a matter of law, leaving no issue of material fact. Johnson & Johnson Medical v. Sanchez, 924 S.W.2d 925, 927 (Tex. 1996). When, as in this case, a defendant moves for summary judgment on a statute of limitations defense, the defendant must (1) prove conclusively when the cause of action accrued and (2) if the plaintiff pleaded a tolling provision, negate its application as a matter of law. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). When the movant asserting an affirmative defense has established the right to a summary judgment, the nonmovant s response must expressly present to the trial court any reasons negating the movant s right to summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). In the absence of a response raising such reasons, these matters may not be raised for the first time on appeal. David Hitner, Lynne Liberato, Summary Judgments in Texas, 54 Baylor L. Rev. 1 (2002) (citing, e.g., State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986) (per curiam)).

In a traditional summary judgment, the burden does not shift, and the trial court may not grant a summary judgment by default for lack of a response by the nonmovant when the movant s summary judgment proof is insufficient. Cotton v. Ratholes, Inc., 699 S.W.2d 203, 205 (Tex. 1985)(per curiam). With exception of an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment, the non-movant must expressly present to the trial court any reasons seeking to avoid movant s entitlement [to summary judgment]. . . . City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) . The response must be in writing. Tex. R. Civ. P. 166a(c); see also Clear Creek Basin Auth., 589 S.W.2d at 677. Pleadings are not summary proof. Id. at 678. The hearing for summary judgment is for argument only; no oral testimony may be presented. Tex. R. Civ. P. 166a(c).

Discussion

Ms. Bragg, in her traditional summary judgment motion, moved for summary judgment as to the individual claims of Troy Huckaby, and the trial court granted summary judgment in her favor as to the individual claims of Troy Huckaby. However, the summary judgment record shows that Troy Huckaby sued only in his representative capacity as next friend of Jacob Huckaby, a minor. Nothing in the record indicates that he is a party to this lawsuit in his individual capacity.

We cannot find any authority for granting a judgment in favor of or against a person or entity not named in the suit as a plaintiff or a defendant. We conclude that the trial court had no authority to enter judgment against Troy Huckaby in his individual capacity. Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991); see also Fuqua v. Taylor, 683 S.W.2d 735, 738 (Tex. App. Dallas 1984, writ ref d n.r.e.)( Judgment may not be granted in favor of a party not named in the suit as a plaintiff or a defendant. ). Huckaby s first issue, as it relates to Ms. Bragg s traditional motion for summary judgment, is sustained. Accordingly, the trial court s judgment will be modified to delete from the judgment the language granting Mandy Nicole Bragg summary judgment as to the individual claims of Troy Huckaby.

No Evidence Summary Judgment

Huckaby s first issue is sufficiently broad to challenge the portion of the trial court s judgment granting Ms. Bragg s motion for no evidence summary judgment.

Applicable Law

After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The motion must specify which essential elements of the opponent s claim or defense lack supporting evidence. Id. The respondent must then present summary judgment evidence raising a genuine issue of material fact. Id. If the respondent fails to produce summary judgment evidence raising a genuine issue of material fact, the court must grant the motion. Id. Therefore, it is virtually mandatory that the nonmovant file a written response. Hitner & Liberato, supra at 69. The nonmovant must present evidence that meets the technical requirements for summary judgment proof. Id. at 71. Non-summary judgment evidence, such as unsworn witness statements, expert s reports or unauthenticated documents (except those produced by the opposing party), is not proper summary judgment evidence and cannot defeat a no-evidence summary judgment motion. Id.

Discussion

Depositions on file show the minor child, Jacob Huckaby, was taken to a doctor some days after the accident because of jerking movements of the child s arm. The record shows no causal connection between the jerking movements and the accident in which the child suffered no apparent objective injury.

Ms. Bragg filed her motion for summary judgment seventeen months after her original appearance and unquestionably after an adequate time for discovery. The motion alleged that there was no evidence to support an essential element of Huckaby s claim that Jacob Huckaby suffered injury as a result of the accident.

Upon the filing of Ms. Bragg s motion, it was incumbent upon Huckaby to present more than a scintilla of evidence creating a fact question on the issue of whether Jacob Huckaby had sustained personal injury in the accident. Because Huckaby offered no evidence on the issue, Rule 166a(i) required the trial court to grant Ms. Bragg s motion. Huckaby s first issue, as it relates to the no evidence summary judgment motion, is overruled.

Denial of Motion for New Trial

In his second issue, Appellant contends the trial court erred in denying his motion for new trial.

Standard of Review

The trial court s ruling on a motion for new trial will not be disturbed in the absence of a showing of an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Applicable Law

A motion for new trial is not a prerequisite for the appeal of a summary judgment. Lee v. Braeburn Valley W. Civic Ass n, 786 S.W.2d 262, 263 (Tex. 1990).

A new trial may be granted for good cause, on motion or on the court s own motion. Tex. R. Civ. P. 320. The trial court can grant a motion for new trial without stating any reason other than in the interest of justice. Champion Int l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988). A motion for new trial must be verified and include affidavits if the motion is based on grounds requiring the trial court to hear evidence such as jury misconduct, newly discovered evidence, or failure to set aside a judgment by default. Zuniga v. Zuniga, 13 S.W.3d 798, 803 n.4 (Tex. App. San Antonio 1999, no pet.), overruled on other grounds, In re Z.L.T., 124 S.W.3d 163 (Tex. 2003). Therefore, one seeking to set aside a judgment by default must attach affidavits to support the factual allegations in the motion for new trial. Michael O Connor, Byron P. Davis, O Connor s Texas Rules-Civil Trials, PostJudgment Motions, 3.1 at 642 (2005).

Huckaby contends that our decision in this case is governed by the rules relating to the setting aside of default judgments set forth in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), later extended to postanswer default judgments in Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966). Some courts of appeals have held that a variant of the Craddock test applies in determining whether the trial court should set aside a default in a summary judgment situation. In Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795 (Tex. App. Houston [14th Dist.] 1998, no pet.), the court restated a variant of the Craddock requirements holding that [w]here the failure to respond to a motion for summary judgment was (1) not intentional or the result of conscious indifference, but the result of an accident or mistake, a new trial should be granted, provided that (2) the non-movant s motion for new trial alleges facts and contains proof sufficient to raise a material question of fact, and (3) demonstrates that the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. Id. at 798-99 (emphasis added).

The Texas Supreme Court, however, later disapproved the decisions holding the Craddock requirements apply when the nonmovant is aware of its mistake at or before the summary-judgment hearing and thus has an opportunity to apply for relief under our rules. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002). The supreme court held that

 Craddock does not apply to a motion for new trial filed after summary judgment has been granted on a summary judgment-motion to which the nonmovant failed to timely respond when the respondent had notice of the hearing and an opportunity to employ the means our civil procedure rules make available to alter the deadlines Rule 166a imposes.

Id. at 684.

Discussion

Because the summary judgment will be modified to strike the language granting summary judgment against Troy Huckaby, individually, we shall address the motion for new trial only as it relates to the no evidence summary judgment granted against Troy Huckaby, as next friend of Jacob Huckaby.

Huckaby did not file a written response supported by proper summary judgment evidence raising a fact question on the issue of whether Jacob Huckaby had sustained any injury referable to the accident. He did, however, appear at trial ready to testify orally regarding Jacob Huckaby s injuries. As Rule 166a(c) requires, the trial court refused to hear oral testimony. Huckaby maintains that the trial court erred in overruling his motion for new trial, because he has satisfied the three requirements of the Craddock test as they have been applied in no response summary judgment cases. The supreme court s opinion in Carpenter forecloses this avenue of relief, because Huckaby received timely notice of the summary judgment hearing. Since Huckaby received timely notice of the summary judgment hearing on May 2, 2005, he had the option and the opportunity to request the court to allow a late response to Ms. Bragg s motion, or in the alternative, to request a continuance of the hearing so that a timely response might be filed. Since Huckaby had notice of the hearing and did not employ any procedural means to alter the deadlines imposed by Rule 166a, he is barred from seeking the relief afforded by Craddock in no answer and postanswer default situations. See Carpenter, 98 S.W.3d at 686.

But even if Huckaby s mistake of law in assuming he could answer orally was a sufficient excuse under the first of Craddock s three requirements, he completely failed to offer evidence with his motion for new trial satisfying the other two requirements of Craddock. Huckaby s motion for new trial contains no proof amounting to more than a scintilla sufficient to show that Jacob Huckaby sustained injuries caused by the collision, and it fails to demonstrate that granting the motion for new trial will not cause delay and work an injury to Ms. Bragg.

Huckaby also argues that because he is not a lawyer, the trial court should have overlooked or excused his failure to file a written response with proper summary judgment evidence as well as his failure to invoke the appropriate rules whereby he might have obtained permission to file a late response or a continuance. Despite his filing pro se, Huckaby is held to the same standard of diligence applicable to a licensed attorney. See Weaver v. E-Z Mart Stores, 942 S.W.2d 167, 169 (Tex. App. Texarkana 1997, no writ). Pro se litigants are not exempt from the rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 (Tex. 1978).

The trial court did not abuse its discretion in overruling Huckaby s motion for new trial. Huckaby s second issue is overruled.

Trial Court s Failure to Appoint Guardian Ad Litem

In his third issue, Huckaby complains that the trial court erred by not appointing a guardian ad litem for Jacob Huckaby, the minor child. Huckaby s motion for the appointment of a guardian ad litem was untimely, because it was not filed for over a month after the trial court rendered summary judgment. Huckaby s motion asked for the appointment of a guardian ad litem because Huckaby was not sufficiently familiar with the law to protect the interests of Jacob Huckaby. Texas Rule of Civil Procedure 173 requires the trial court to appoint an ad litem only if (1) the next friend or guardian appears to the court to have interest adverse to the minor, or (2) the parties agree. Huckaby does not allege an interest adverse to Jacob Huckaby, and the record fails to show that one existed. Nor did the parties agree to the appointment of a guardian ad litem. The trial court did not err in failing to appoint a guardian ad litem. Huckaby s third issue is overruled.

Disposition

The order of the trial court granting summary judgment is modified to delete that part of the order granting Mandy Nicole Bragg summary judgment as to the individual claims of Troy Huckaby. The order, as modified, is affirmed.

BILL BASS

Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(PUBLISH)