Court of Appeals of Texas, Fifth District, Dallas
JOANN B. SEMPLE AND CAROL MATTHEWS, Appellants
FRED VINCENT, Appellee
Appeal from the 68th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-11180
Justices Francis, Lang-Miers, and Whitehill
ELIZABETH LANG-MIERS, JUSTICE
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.
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.
filed a motion for summary judgment based on the affirmative
defense of limitations. 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.
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.
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."
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. 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
court granted summary judgment in favor of Vincent. The
Semple Parties appealed.
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.
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.
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
of Review and Applicable Law
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.
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. 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
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. ...