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Guerra v. State

Court of Appeals of Texas, Fourteenth District

February 27, 2018

HENRY GUERRA, SR., REBECCA GOMEZ GUERRA, MICHAEL GUERRA, BLANCA GUAJARDO, ESTHER GOMEZ TRISTAN, LINDA RUTH GARZA, AND LAURO GARZA, Appellants
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2014-70768

          Panel consists of Justices Jamison, Busby, and Donovan.

          MEMORANDUM OPINION

          Martha Hill Jamison, Justice

         Appellants Henry Guerra, Sr., Rebecca Gomez Guerra, Michael Guerra, Blanca Guajardo, Esther Gomez Tristan, Linda Ruth Garza, and Lauro Garza challenge the trial court's grant of summary judgment in favor of appellee, the State of Texas, on the basis that summary judgment was untimely because the parties had not completed alternative dispute resolution (ADR) before the summary judgment hearing, as they believe was required by the court's docket control order.[1] The State argues that we lack jurisdiction over this appeal and that appellants did not preserve error as to their sole appellate complaint. We conclude that we have jurisdiction but agree with the State that appellants did not preserve error. We affirm.

         Background

         The State filed this lawsuit on December 5, 2014, alleging that appellants, among others, in the course of operating an adult home schooling center, engaged in violations of the Deceptive Trade Practices-Consumer Protection Act and the Assumed Business or Professional Name Act.[2] On December 10, 2015, the trial court signed a docket control order requiring the parties, among other things, to (1) file an agreement for ADR or set an objection to ADR by February 29, 2016, (2) complete ADR by May 27, 2016, and (3) have dispositive motions, such as for summary judgment, heard by April 25, 2016.

         The State filed its motion for summary judgment on March 28, 2016, but the trial court did not render final summary judgment until June 10, nearly two weeks after the deadline for completion of ADR. Appellants filed no response to the motion.

         Defendant Henry Guerra, Jr., who is not a party to this appeal, filed a motion for new trial, which was granted. The trial court vacated the summary judgment only as to Guerra, Jr. Appellants filed a notice of appeal on September 12, and the trial court signed a revised final summary judgment on October 7, disposing of all claims and all parties.

         I. Premature Notice of Appeal Deemed Filed after Final Judgment

         We begin by addressing whether we have jurisdiction over this appeal. The State argues that we lack jurisdiction because the order identified in appellants' notice of appeal, the summary judgment dated June 10, 2016, became an interlocutory order on August 19, when the trial court vacated the summary judgment as to Guerra, Jr.[3] See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) ("[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties."). Appellants filed their notice of appeal on September 12.[4] The trial court rendered final summary judgment disposing of all claims and all parties, including Guerra, Jr., on October 7. Thus, appellants' notice of appeal was premature. However, a prematurely filed notice of appeal is deemed filed after the trial court renders final judgment. See Tex. R. App. P. 27.1 ("In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal."). Accordingly, we have jurisdiction over this appeal. See Lerma v. Forbes, 144 S.W.3d 16, 18 (Tex. App.-El Paso 2004, no pet.).

         II. No Preservation of Error

         We next address whether appellants preserved error on their argument that the trial court erred in granting summary judgment because the parties had not completed ADR before the summary judgment hearing, which they allege was required by the court's docket control order. The State argues appellants failed to preserve error because they did not respond to the State's summary judgment motion. We agree.

         The non-movant to a summary judgment motion is not required to answer or respond to the motion to contend on appeal that the grounds expressly presented in the motion are insufficient as a matter of law to support summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The non-movant, however, may not raise any other issues as grounds for reversal for the first time on appeal. Id. In other words, any issues that a non-movant contends avoid summary judgment must be expressed in a written response or answer to the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); KBG Investments, LLC v. Greenspoint Prop. Owners' Ass'n, 478 S.W.3d 111, 114 (Tex. App.-Houston [14th Dist.] 2015, no pet.); see also Clear Creek Basin Auth., 589 S.W.2d at 678 ("[T]he nonmovant must expressly present to the trial court any reasons seeking to avoid movant's entitlement [to summary judgment].").[5]

         Appellants seek to avoid summary judgment because the parties apparently had not completed ADR before the summary judgment hearing. Therefore, to preserve error on this issue, they were required to raise it in response to the State's summary judgment motion, which they failed to do.[6] Concluding that ...


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