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Sims v. Sims

Court of Appeals of Texas, Fifth District, Dallas

March 27, 2018

STEVEN S. SIMS, Appellant
v.
ROSALINE D. SIMS, Appellee

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-03445

          Before Justices Lang-Miers, Fillmore, and Stoddart Opinion by Justice Lang-Miers

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE

         Appellant Steven S. Sims, appearing pro se, appeals the trial court's summary judgment in favor of appellee Rosaline D. Sims.[1] In eight issues, Steven argues that the trial court erred in granting summary judgment. We affirm.

         Background

         Steven filed for divorce from Rosaline. A trial court issued a final decree of divorce, which Steven signed and agreed to in form and substance. Subsequently, Steven filed this suit against Rosaline, alleging claims including defamation and personal injury and requesting damages and exemplary damages. Rosaline filed a motion for traditional summary judgment, arguing that Steven's claims were barred by res judicata and the statute of limitations. Steven did not file a response to the motion or request a continuance. The trial court found that summary judgment "should be and is entered on [Rosaline's] affirmative defenses stated in her motion" and granted Rosaline's motion for summary judgment. Steven filed a "Request for Rehearing and Motion for New Trial." The trial court denied the motion for new trial. Steven then filed this appeal. He also filed a motion for sanctions against Rosaline and her attorney.

         Preservation

         In his eight issues on appeal, Steven challenges "THE LEGAL AND FACTUAL SUFFICIENCY OF THE COURT'S FINDINGS AT SUMMARY JUDGMENT" because he claims Rosaline and her counsel were spoliating evidence and he argues that the trial court erred by not establishing a discovery control plan before holding a summary judgment hearing, by failing "TO NOTICE THE IMPROPER SCHEDULING AND NOTICE OF HEARING OF SUMMARY JUDGMENT[, ]" by not allowing time for him to address and correct special exceptions, by not allowing additional and adequate time for discovery, and by improperly granting summary judgment when conflicting statements in Rosaline's answer and motion for summary judgment raised a fact issue. Steven also argues that "THE TRIAL JUDGE ABUSED ITS AUTHORITY BY RENDERING A SUMMARY JUDGMENT WHEN THE APPELLANT HAD NO EVIDENCE TO PRESENT AT THE HEARING" and that "THE EXCLUSION OF THE EVIDENCE IS CONTRADICTORY TO THE RULINGS ESTABLISHED BY THE SUPREME COURT[.]"[2]

         Central to this appeal, as we noted, Steven did not file a response to Rosaline's motion for summary judgment. "A non-movant must present its objections to a summary judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived." D.R. Horton-Tex., Ltd. v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009); see Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). And although Steven filed a motion for new trial, [3] "a party who fails to expressly present to the trial court any written response in opposition to a motion for summary judgment waives the right to raise any arguments or issues post-judgment." Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008); see Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (concluding party waived issue in opposition to summary judgment when the party asserted the issue for the first time in a motion for new trial). However, "the non[-]movant need not have answered or responded to the motion to contend that the movant's summary judgment proof is insufficient as a matter of law to support summary judgment." Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

         With respect to one issue-issue six-Steven argues on appeal that:

APPELLANT PRESERVED THE ISSUE OF NOT HAVING DEPOSITIONS AT SUMMARY JUDGMENT HEARING, WHEN THE TRIAL JUDGE STATED,
"YOU SAID THAT YOU HAD TWO INDIVIDUALS THAT YOU WISHED TO DEPOSE THAT WILL ESTABLISH YOUR CLAIM OF DEFAMATION. MY QUESTION IS: WHY DID YOU NOT TAKE THOSE DEPOSITIONS?" (RR: 5, 6, 7)
THEREFORE, THE TRIAL COURT SHOULD HAVE ALLOWED MORE TIME TO GATHER DISCOVERY.

         But reference to the trial court's statement does not show that appellant "expressly presented" the issue regarding the absence of depositions to the trial court "by written motion, answer or other response[.]" As a result, it may not be considered on ...


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