Summary
holding trial court did not err in sustaining objections to oral testimony proffered at summary-judgment hearing
Summary of this case from Kennedy Con., Inc. v. FormanOpinion
No. 04-05-00718-CV
Delivered and Filed: June 21, 2006.
Appeal from the 81st Judicial District Court, La Salle County, Texas, Trial Court No. 02-03-00011-Cvl, Honorable Donna Rayes, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Sie Joe Lann filed suit against Vincent D. Callahan for various causes of action arising from Callahan's representation of Lann in an appeal of his conviction for murder. The trial court entered an order granting Callahan's traditional and no-evidence motions for summary judgment and his motion to dismiss. Because the issues in this appeal involve well-settled law, we affirm the trial court's judgment in this memorandum opinion.
1. Lann claims that the trial court erred in disallowing him a trial by jury. Rule 166a of the Texas Rules of Civil Procedure, however, permits a trial court to resolve a case by summary judgment. See Tex. R. Civ. P. 166a; see also Peeler v. Hughes Luce, 909 S.W.2d 494, 497-98 (Tex. 1995) (affirming summary judgment in legal malpractice claim against criminal defense attorney based on public policy).
2. Lann's second point of error is based on actions taken in relation to his obtaining service of process on Callahan. The trial court's order was not based on the absence or any defect in service. Accordingly, Lann cannot demonstrate that he was harmed by any action in relation to the service of process. See Tex.R.App.P. 44.1(a) (providing that no judgment may be reversed unless error complained of probably caused rendition of an improper judgment).
3. Lann next contends that Chapter 9 and Chapter 14 of the Texas Civil Practice and Remedies Code ("Code") violate his constitutional rights because they disallow access to the courts by inmates. Chapter 9 of the Code, however, is applicable to actions brought by any claimant and is not limited to actions filed by inmates. See Tex. Civ. Prac. Rem. Code Ann. § 9.002 (Vernon 2002). With regard to Chapter 14, the trial court expressly noted at the hearing that since Lann was "not filing [his] suit in forma pauperis or as a pauper then that Chapter 14 would not apply." Furthermore, the law is well-established that Chapter 14 does not violate any constitutionally-protected right. See Hicks v. Brysch, 989 F.Supp. 797, 822 (W.D. Tex. 1997); Hines v. Massey, 79 S.W.3d 269, 271 (Tex.App.-Beaumont 2002, no pet.); Thomas v. Bilby, 40 S.W.3d 166, 170-71 (Tex.App.-Texarkana 2001, no pet.).
4. Lann further contends that the trial court's sustaining of Callahan's objections during the summary judgment hearing disallowed him from fully describing the chain of events. The trial court sustained several objections to Lann attempting to orally testify regarding factual evidence that was not properly submitted in a response to the summary judgment motions. Rule 166a(c) sets forth the procedures governing a summary judgment hearing and states, "No oral testimony shall be received at the hearing." Tex. R. Civ. P. 166a(c). Accordingly, the trial court did not err in sustaining the objections.
5. In his final issue, Lann complains about actions taken by the district clerk in response to his request for a copy of the docket sheet. The scope of our appellate jurisdiction is limited to reviewing decisions by a lower court; we lack appellate jurisdiction over an act of the district clerk. See Newman v. Castro, No. 12-04-00051-CV, 2005 WL 1243418, * 2 n. 5 (Tex.App.-Tyler May 25, 2005, pet. dism'd w.o.j.).
The trial court's order is affirmed.