Court of Appeals of Texas, Second District, Fort Worth
RODNEY A. HURDSMAN APPELLANT
WISE COUNTY SHERIFF DEPUTIES: JAMES MAYO, CLINT CADDELL, CHAD LANIER, CHRISTOPHER HODGES, AND HIGHTOWER; WISE COUNTY JUDGES: MELTON CUDE AND CRAIG JOHNSON; AND THE COUNTY OF WISE, TEXAS APPELLEES
THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; MEIER and GABRIEL, JJ.
MEMORANDUM OPINION 
SUDDERTH CHIEF JUSTICE
live pleading at the time that the trial court granted
summary judgment, pro se Appellant Rodney A. Hurdsman, an
inmate, sued Appellees Wise County, two Wise County
judges-the Honorable Melton Cude, who presides over County
Court at Law No. 1, and the Honorable Craig Johnson, a
Justice of the Peace-and Wise County Sheriff's Deputies
James Mayo, Clint Caddell, Chad Lanier, Christopher Hodges,
and "Hightower" for "declaratory and
injunctive relief, return of property, compensatory and
punitive damages, as well as any attorney fees and other
costs associated with this lawsuit," alleging violations
of his state and federal constitutional rights as well as
claims for conversion, malicious abuse of process, official
oppression, negligence, conspiracy, retaliation-including
harassment, intimidation, and threats-and false arrest.
See U.S. Const. amends. I, IV, V, VI, VIII, XIV; 42
U.S.C.A. §§ 1983, 1986 (West 2012) (providing,
under § 1983, for civil actions for deprivation of
constitutional rights and, under § 1986, for civil
actions for negligence in preventing § 1983 violations);
Tex. Const. art. I, §§ 3, 3a, 8, 9, 17, 19,
defendants moved for traditional summary judgment on their
defenses of limitations, qualified immunity, and judicial
immunity and as to Hurdsman's "illegal takings"
and conversion claims on the basis that the property seizures
had occurred with lawful authority and that Hurdsman had
agreed to the subsequent property award. They moved for
no-evidence summary judgment on the grounds that there was no
evidence to show that any of the property was seized
illegally, no evidence that Hurdsman was injured by any act
of the defendants, and no evidence that the defendants
violated any provision of the state or federal constitution.
summary judgment response, Hurdsman argued that the date of
filing for his original petition should have been February
10, 2016, when he placed his original petition with the jail
authorities at the Williamson County Correctional Facility.
Referencing the defendants' summary judgment evidence,
Hurdsman also argued that the search warrants were tainted by
information illegally obtained in violation of the federal
and state constitutions and state statutes, that with the
illegal information excised, the warrants lacked probable
cause, and that the warrants did not describe the seized
property with particularity. Hurdsman argued that he had
never authorized Shaw to represent him and had never
authorized or agreed to a stipulated agreed judgment and that
the defendants were not immune "for their calculated,
willful and flagrant violation of well[-]established
Constitutional and statutory law."
response, Hurdsman attached documents supporting his use of
the "prisoner mailbox rule," see Ramos v.
Richardson, 228 S.W.3d 671, 673 (Tex. 2007),
pages of a seventeen-page Wise County Sheriff's Office
incident/offense report, and the agreed judgments and orders
awarding various items of seized property.
issues, Hurdsman appeals the trial court's order that
summary judgment for Appellees was "in all things
GRANTED." In his first issue, Hurdsman correctly argues
that summary judgment was inappropriate on the limitations
ground. See id. In his second and third
issues, Hurdsman contends that summary judgment was
inappropriate on Appellees' lawful-warrant and
agreed-judgment grounds because the search warrants were not
lawful and the seizure of his property exceeded the
warrants' scope and because he never authorized or
consented to an agreed judgment. In his final issue, Hurdsman
argues that Appellees are not immune from suit because
Appellees "knowingly and willfully violated the Fourth
and Fourteenth" Amendments when they illegally searched
his premises and seized his property with a warrant that they
knew was invalid. He further argues that when he attempted to
recover his personal property from the county at the impound
yard, "he was subjected to an obscene and atrocious
criminal act by one of the Appellees that was sexual in
nature" and was retaliated against when he attempted to
report that act to the proper authorities in the Wise County
as here, the trial court's judgment rests upon more than
one independent ground or defense, the aggrieved party must
assign error to each ground, or the judgment will be affirmed
on the ground to which no complaint is made. Scott v.
Galusha, 890 S.W.2d 945, 948 (Tex. App.-Fort Worth 1994,
writ denied). In his appellate brief, Hurdsman addressed
Appellees' limitations and immunity-based affirmative
defenses and Appellees' traditional summary judgment
grounds that the property was seized under lawful authority
and that Hurdsman consented to the disposal of the property
in an agreed judgment, but he did not address Appellees'
after an adequate time for discovery,  the party without
the burden of proof may, without presenting evidence, move
for summary judgment on the ground that there is no evidence
to support an essential element of the nonmovant's claim
or defense. Tex.R.Civ.P. 166a(i). The motion must
specifically state the element or elements for which there is
no evidence. See id.; Timpte Indus., Inc.
v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). Unless a
procedural defect precludes the granting of a no-evidence
motion for summary judgment, the trial court
must grant the no-evidence portion of a
summary judgment motion unless the nonmovant produces summary
judgment evidence raising a genuine issue of material fact
and points out such evidence to the trial court. See
Kutner v. Wells Fargo Bank, N.A., No. 02-14-00238-CV,
2015 WL 3523156, at *1 (Tex. App.-Fort Worth June 4, 2015, no
pet.) (mem. op.); Correa v. Citimortgage, Inc., No.
02-13-00019-CV, 2014 WL 3696101, at *2-3 (Tex. App.-Fort
Worth July 24, 2014, no pet.) (mem. op.) (citing Dyer v.
Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012
WL 335858, at *3-5 (Tex. App.-Fort Worth Feb. 2, 2012, pet.
denied) (mem.op.)). And when, as here, a party moves for
summary judgment under both rules 166a(c) and 166a(i), we
will first review the trial court's judgment under rule
166a(i)'s standards. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004). If the appellant failed to
produce more than a scintilla of evidence under that burden,
then there is no need to analyze whether the appellees'
summary judgment proof satisfied the rule 166a(c) burden.
Appellees' summary judgment grounds was that there was no
evidence that Hurdsman was injured by any of their acts.
Damages are an essential element of a constitutional tort
action brought under 42 U.S.C. § 1983 and any other tort
action. See generally 42 U.S.C.A. § 1983
(providing that a person who acts under color of state law to
deprive another of any rights, privileges, or immunities
secured by federal law "shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress"); Tex. Beef Cattle Co. v.
Green, 921 S.W.2d 203, 207 (Tex. 1996) (op. on
reh'g) (requiring proof of special damages, among other
elements, to prevail in a suit alleging malicious prosecution
of a civil claim); Fix It Today, LLC v. Santander
Consumer USA, Inc., No. 02-14-00191-CV, 2015 WL 2169301,
at *2 (Tex. App.-Fort Worth May 7, 2015, no pet.) (mem. op.)
(providing that damages are an essential element of a civil
conspiracy claim); Simpson v. Pinkston, No.
02-05-00352-CV, 2007 WL 1501965, at *2 (Tex. App.-Fort Worth
May 24, 2007, no pet.) (mem. op.) (stating that the measure
of damages for conversion is the amount necessary to
compensate the plaintiff for the actual losses or injuries
sustained as a natural and proximate result of the
defendant's conversion, which includes the fair market
value of the property at the time and place of the conversion
and compensation for loss of the use of the converted
Hurdsman presented arguments in his summary judgment response
and now on appeal that he was harmed, arguments are not
evidence. See Clayton v. Wisener, 169 S.W.3d 682,
684 (Tex. App.-Tyler 2005, no pet.) ("Motions and
arguments of counsel are not evidence."). Pleadings
likewise do not constitute summary judgment evidence.
Wood v. Wells, No. 02-11-00087-CV, 2011 WL 5515483,
at *5 (Tex. App.-Fort Worth Nov. 10, 2011, no pet.) (mem. op.
on reh'g) ("The focus of a no-evidence summary
judgment is shifted from the pleadings to the actual evidence
or proof to assess whether there is a genuine need for a
the evidence that Hurdsman attached to his summary judgment
response pertained to his limitations argument. The remaining
evidence-two pages from a seventeen-page Wise County
Sheriff's Office incident/offense report referencing a
theft allegedly committed by Hurdsman and the agreed
judgments and the orders awarding possession of seized
property to the Wise County Sheriff's Department-do not
demonstrate that Hurdsman suffered any damages because there
is no evidence to show that Hurdsman had any ownership
interests in the seized property or that the agreed judgments
were not actually entered with Hurdsman's consent.
the trial court did not err by granting summary judgment on
this no-evidence ground because Hurdsman brought forth no
evidence to raise a genuine issue of material fact from which
a reasonable juror could determine that he was actually
damaged by Appellees' acts. Cf. Tex. Civ. Prac.
& Rem. Code Ann. § 132.001(a), (e) (West Supp. 2017)
(providing for an unsworn declaration to be used in lieu of
an affidavit required by a statute or rule and setting out
the statutory requirements for an inmate's unsworn
declaration); Tex.R.Civ.P. 166a(f) (stating, with regard to
summary judgment evidence, that "[s]upporting and
opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in
evidence, and ...