Opinion
No. 10-06-00104-CV
Opinion delivered and filed July 18, 2007.
Appeal from the 52nd District Court Coryell County, Texas, Trial Court No. CAC-04-35566.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
(Chief Justice GRAY dissenting)
MEMORANDUM OPINION
Augustus Jerome Mayes, a Texas inmate, sued Charles O'Reilly, an employee of the Texas Department of Criminal Justice, for breach of contract. The trial court granted summary judgment in favor of O'Reilly. We construe Mayes's pro se appeal to assert that the trial court: (1) was not authorized to grant summary judgment; (2) improperly refused to grant a default judgment; and (3) failed to properly exercise the duties of his office. We affirm.
SUMMARY JUDGMENT
Mayes argues that the trial court was not authorized to grant summary judgment because: (1) fact issues exist; and (2) both he and O'Reilly had filed a jury demand. O'Reilly argues that because Mayes did not file a summary judgment response, his appeal is limited to whether O'Reilly's motion is insufficient as a matter of law.
In his "reply brief," Mayes states that O'Reilly omitted "part of the record" that "support[s] factual undisputed evidence."
If the non-movant fails to respond to a summary judgment motion, he is "`limited on appeal to arguing the legal sufficiency of the grounds presented by the movant.'" Maddox v. Cosper, 25 S.W.3d 767, 771 (Tex.App.-Waco 2000, no pet.) (quoting McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993)). He "may not contend on appeal that there is a disputed issue of material fact." Haynes v. City of Beaumont, 35 S.W.3d 166, 174 (Tex.App.-Texarkana 2000, no pet.).
Mayes refused to accept service of O'Reilly's motion and did not file a response. His appeal is limited to legal sufficiency grounds. See Maddox, 25 S.W.3d at 771; see also Haynes, 35 S.W.3d at 174. We will not consider whether fact issues exist that precluded the trial court from granting summary judgment. See Haynes, 35 S.W.3d at 174-75. Because Mayes has not raised the issue, we do not address whether O'Reilly's motion is insufficient as a matter of law. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (an appellate court cannot address unassigned error); see also Cotton v. Cotton, 57 S.W.3d 506, 509 (Tex.App.-Waco 2001, no pet.) (same).
The trial court did not deprive Mayes of the right to a jury trial. The "right to a jury trial in civil cases is not absolute." Bliss v. NRG Indus., 162 S.W.3d 434, 437 (Tex.App.-Dallas 2005, pet. denied); Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex.App.-Texarkana 2002, pet. denied). "When a party cannot show a material fact issue, there is nothing to submit to a jury, and the grant of summary judgment to the opposing party does not violate the constitutional right to a jury trial." Lattrell, 79 S.W.3d at 150; see Bliss, 162 S.W.3d at 437. Mayes cannot show that a material fact issue exists; the trial court properly granted O'Reilly's summary judgment motion. See Maddox, 25 S.W.3d at 771; see also Haynes, 35 S.W.3d at 174; Lattrell, 79 S.W.3d at 150; Bliss, 162 S.W.3d at 437. We overrule Mayes's summary judgment challenge.
DEFAULT JUDGMENT
Mayes challenges the trial court's failure to grant any of his three motions for default judgment. However, O'Reilly filed an original answer and general denial. An "original denial shall be presumed to extend to all matters subsequently set up by the plaintiff." TEX. R. CIV. P. 92. Mayes was not entitled to default judgment. We overrule his challenge to the trial court's failure to rule on his motions for default judgment.
EXERCISE OF JUDICIAL DUTIES
Mayes contends that the trial court failed to properly exercise the duties of his office by holding a telephonic summary judgment hearing, refusing to grant default judgment, and colluding with the Attorney General's Office.
"[A]n inmate does not have an absolute right to appear in person in every court proceeding." In the Interest of Z. L. T., 124 S.W.3d 163, 165 (Tex. 2003). If the trial court determines that the "prisoner is not entitled to appear personally, then the court should permit him `to proceed by affidavit, deposition, telephone, or other effective means.'" In re Taylor, 39 S.W.3d 406, 412 (Tex.App.-Waco 2001, no pet.); Boulden v. Boulden, 133 S.W.3d 884, 886-87 (Tex.App.-Dallas 2004, no pet.). The record does not show that Mayes objected to the telephonic hearing. Nor has Mayes presented any reasons justifying his personal appearance in the trial court. The trial court's decision to hold a telephonic hearing was not improper.
Neither does the record contain any evidence of impropriety by either the Attorney General's Office or the trial court. Mayes points to a letter, on which he was copied, from the Attorney General's Office to the trial court coordinator referencing a prior phone conversation and scheduling of the telephonic hearing. This letter appears to be nothing more than normal correspondence scheduling a hearing. Nothing in the record substantiates Mayes's allegations of collusion. We overrule Mayes's challenge to the trial court's exercise of his judicial office.
The trial court's judgment is affirmed.
DISSENTING OPINION
I am still looking for something in this proceeding, anything, that has any of the characteristics of an appellant's brief. I find nothing.
Persons who choose to represent themselves are entitled to some latitude in construing the meaning of their pleadings. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex.App.-Waco 2001, pet. denied). They are not, however, entitled to the procedural or substantive advantage obtained by failing to adhere to the rules of procedure or the substantive law. Id. See Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex.App. — Amarillo 1998, pet. denied).
BACKGROUND
This suit was brought by an inmate against a prison guard. The inmate asserts that he had a contract with the guard that was breached. The alleged contract was that the guard would pay the inmate $500,000 for the use of the inmate's name. The guard moved for summary judgment on the basis, supported by affidavit, that there was no such contract. The inmate did not file a response. The trial court granted summary judgment. The inmate appealed.
THE APPEAL
The inmate has filed nothing that resembles a brief. See TEX. R. APP. P. 38.1. Other courts do not seem to have a problem in requiring compliance with the rules by pro se appellants. See e.g. In re Brooks, No. 07-07-0252-CV, 2007 Tex. App. LEXIS 5304 (Tex.App. — Amarillo July 5, 2007, orig. proceeding); Herrera v. Bombardier Capital, Inc., No. 04-04-00404-CV, 2005 Tex. App. LEXIS 775 (Tex.App. — San Antonio Feb. 2, 2005, no pet.) (mem. op.). But a majority of this Court has not required substantial compliance with the rules. See e.g.Crawford v. State, No. 10-06-00269-CR, 2007 Tex. App. LEXIS 3614, *2-7 (Tex.App. — Waco May 9, 2007, no pet.) (Gray, C.J., dissenting); In re Long, 211 S.W.3d 481 (Tex.App.-Waco 2007, order) (Gray, C.J., dissenting); Rodgers v. State, 78 S.W.3d 616, 617-618 (Tex.App.-Waco 2002, order) (Gray, J., dissenting).
FUTURE COURSE OF PROCEEDINGS
After notice to the inmate that his appeal would be dismissed for want of prosecution unless a proper brief is filed, so that we are compliant with the rules of appellate procedure, TEX. R. APP. P. 38.8(a)(1), barring something that at least looks like a brief, TEX. R. APP. P. 38.1, I would dismiss the appeal.
CONCLUSION
Because the majority addresses the merits of issues not properly before us, I dissent.