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Semple v. Vincent

Court of Appeals of Texas, Fifth District, Dallas

July 5, 2017


          On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-11180

          Before Justices Francis, Lang-Miers, and Whitehill



         Appellants Joann B. Semple and Carol Matthews, appearing pro se, appeal from a summary judgment in favor of appellee Fred Vincent. Semple and Matthews argue that the trial court's summary judgment order was defective or violated their due process rights, the court erred in granting summary judgment because there were genuine issues of material fact, and the court erred in "[i]gnoring" their motions to file an amended petition and to file late evidence. We affirm.


         Semple and Matthews (Semple Parties) sued Vincent alleging that he breached an oral agreement to cash a check for $21, 000 for them and he defrauded them. Vincent filed an amended answer asserting a general denial and the affirmative defense that the Semple Parties' claims were barred by limitations.

         Vincent filed a motion for summary judgment based on the affirmative defense of limitations.[1] He contended that either a two-year or four-year statute of limitations applied and that his summary judgment evidence-his affidavit-established that "limitations expired at the latest in March 2014 (which is four (4) years from the date of the parties' disagreement regarding [his] obligation to return the transferred funds to the" Semple Parties). And Vincent argued that, because the Semple Parties filed suit in September 2014, after expiration of the later of two possible limitations periods, his summary-judgment evidence established his affirmative defense of limitations as a matter of law.

         The Semple Parties filed a motion for continuance and extension of time to respond to Vincent's summary judgment motion. The trial court continued the summary judgment hearing twice: first from November 6, 2015 to November 9, 2015 and then to December 11, 2015. On December 4, 2015, the Semple Parties filed two affidavits in which Matthews attested to e-mails (which were attached to one affidavit) concerning proposals for settlement and attested to discussions between the Semple Parties and Vincent's attorney. Also on December 4, 2015, the Semple Parties filed their response to Vincent's summary judgment motion in which they argued that the statute of limitations did not expire prior to their filing suit. Vincent filed his objection to the summary-judgment evidence submitted by the Semple Parties in support of their response to his summary judgment motion. Vincent argued that the two affidavits by Matthews and attachments were inadmissible on various grounds, including because they did not state that they were based on Matthews's personal knowledge and because they concerned settlement discussions.

          On December 10, 2015-the day before the rescheduled hearing on Vincent's summary judgment motion-the Semple Parties filed "Plaintiffs' Verified Motion for Leave to File Amended Pleading" and "Plaintiffs' Verified Motion for Leave to File Evidence Response [sic] for Summary Judgment[.]" At the summary judgment hearing, the court noted that the Semple Parties filed a "Verified Motion for Leave to File Amended Pleadings" and a "Verified Motion for Leave to file evidence" but they had "not indicated what evidence or pleadings they would like to file that I can see" and the court requested the Semple Parties to "explain."

         When asked by the court what additional evidence she wanted to file, Semple responded that she "had an affidavit from John Reeves" that was not filed.[2] When the court asked where the affidavit was, Semple replied that she "was just looking for the exhibit, but [she] left it in the car" although she had "proof it was notarized last Friday by John Reeves." Semple then referred to "two other affidavits" but, when asked by the court if she had a copy of the affidavits with her, she responded that she "forgot all [her] notes" and "it seems like [she] forgot them in the car" and she did not "have them here." Vincent's counsel stated that he had not seen the affidavits. Semple also mentioned another document and information that she was "in the process of retrieving[.]" Although Semple stated that the Semple Parties filed an affidavit with their response, the court responded that the affidavit was defective and that they "filed it in an incorrect form" and that, after they did not "do it correct[ly] the last time, " he gave them "another chance." The court stated: "I really wanted to give you a chance, but you've got to follow the rules" and "[y]ou've not been following the rules." The court referred to "showing up and saying [you] don't have the affidavit with you[.]" The court stated, "Ms. Semple, I've given you so many chances on this[.]" The court then continued: "I have bent over backwards to try to be fair to you guys. At some point, I've got to enforce the rules. I've probably been too lenient up to this point. But unfortunately, based on the record before me, I'm going to have to grant the Summary Judgment."[3]

         The court granted summary judgment in favor of Vincent. The Semple Parties appealed.

         Procedural Due Process

         In their first issue, the Semple Parties argue that the order granting summary judgment was either defective or it violated their due process rights because it stated that the hearing on the motion for summary judgment took place on November 9, 2015 instead of the date when the hearing took place, December 11, 2015. They argue that if a trial court grants a motion before a scheduled hearing date, the trial court violates the due process rights of the nonmoving party.

         Vincent argues that the typographical error in the order does not constitute a denial of due process. He contends that the record makes clear that the hearing took place on December 11, 2015 and the reference in the order to an earlier date "is of no substantive importance." In addition, Vincent filed a motion for judgment nunc pro tunc asking the trial court to sign a judgment nunc pro tunc to correctly reflect the hearing date of December 11, 2015. The court granted the motion. And the record contains an Order Granting Motion for Summary Judgment reflecting the correct date of the hearing, December 11, 2015. As a result, the Semple Parties' complaint in their first issue is moot because the trial court addressed their complaint by correcting the reference to the date of the summary judgment hearing to December 11, 2015 in the judgment nunc pro tunc. See In re J.R., No. 10-12-00003-CV, 2012 WL 3537995, at *4 (Tex. App.-Waco Aug. 16, 2012, no pet.) (mem. op.); Meeks v. Meeks, 783 S.W.2d 823, 823 (Tex. App.-Fort Worth 1990, no writ). We resolve the Semple Parties' first issue against them.


         In their second issue, the Semple Parties argue that the trial court erred in granting summary judgment on Vincent's limitations defense because they raised genuine issues of material fact.

         Standard of Review and Applicable Law

         We review a trial court's grant of summary judgment de novo. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). The movant must show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Quintana v. CrossFit Dallas, LLC, 347 S.W.3d 445, 449 (Tex. App.-Dallas 2011, no pet.). We must review the record "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). If a defendant moves for summary judgment on an affirmative defense, he must conclusively establish each essential element of the affirmative defense. Quintana, 347 S.W.3d at 449. "Undisputed evidence may be conclusive of the absence of a material fact issue, but only if reasonable people could not differ in their conclusions as to that evidence." Buck, 381 S.W.3d at 527.

         "A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense." KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). As a result, the defendant must conclusively prove when the cause of action accrued. Id.[4] If the summary judgment movant establishes that the statute of limitations bars the action, the nonmovant must adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.

          We review a trial court's decision to admit or exclude summary-judgment evidence for an abuse of discretion. Nelson v. Pagan, 377 S.W.3d 824, 830 (Tex. App.-Dallas 2012, no pet.). The party complaining of error in the exclusion of evidence has the burden to show error probably caused the rendition of an improper judgment. See Tex. R. App. P. ...

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