Summary
affirming in part, reversing in part, and remanding the case to the trial court for further proceedings limited to Sorrow's claims against the unserved defendants, including any severance of those claims from the summary judgment against the sheriff
Summary of this case from In re Sorrow SeniorOpinion
NO. 14-18-00901-CV
03-02-2021
Loyd Landon SORROW, Sr., Appellant v. HARRIS COUNTY SHERIFF, Appellee
Loyd Landon Sorrow, Sr. appeals from the trial court's grant of appellee Harris County Sheriff's second amended motion for summary judgment, which dismissed with prejudice Sorrow's claims that he suffered injuries from medical care he received in pre-trial detention while in the Sheriff's custody. On its face the Sheriff's motion was interlocutory, but the trial court added finality language that made the otherwise interlocutory judgment final as to several unserved defendants. See Bella Palma, LLC v. Young , 601 S.W.3d 799, 802 (Tex. 2020) (per curiae); In re Elizondo , 544 S.W.3d 824, 828 (Tex. 2018) (per curiam) ; Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 192–93 (Tex. 2001). Sorrow brings nine issues, which along the way require us to determine how the final judgment affected the unserved defendants and how to address the preservation of an appellate complaint based on error that occurred in judgment formation of what should have been an interlocutory summary judgment. Following this court's precedent, we affirm the judgment of the trial court in part as to the dismissal with prejudice of Sorrow's claims against the Sheriff and reverse the judgment of the trial court in part as to Sorrow's claims against the unserved defendants.
I. BACKGROUND
Sorrow filed suit on May 15, 2017, naming the Harris County Sheriff, the "University of Texas Health Science Center of Houston," and "Dr. Seal," as defendants and alleged a variety of tort, statutory, and constitutional violations stemming from Sorrow's medical treatment while in the custody of the Sheriff during his pre-trial detention. Sorrow later named "Harris County" as a defendant. In his petition, Sorrow asserts that between 2001 and 2002—at least fifteen years earlier—he was prescribed a "mixture of highly powerful anti-depressants, narcotics, and narcotic[-]like pills and[/]or medications" by doctors when he was in jail that caused him to have "many adverse reactions, side effects, and adverse side effects, ... such as audio-visual hallucinations, anxiety attacks, agitation, memory lapses and loss." He claims the Sheriff neglected him and failed to intervene, prevent, or exercise the degree of safe care that professional guardians owe mentally ill pre-trial detainees within the boundaries provided by Texas law and the U.S. and Texas Constitutions. Sorrow concludes these actions also resulted in the denial of due process because the medications he was prescribed dulled his reasoning and resulted in a "medicated mental restraint" for his court hearings.
Sorrow made several arguments regarding the person or persons he intended to sue at the Harris County Sheriff's department. However, his arguments are difficult to follow. For purposes of this opinion, we conclude he intended to name persons working for the Sheriff.
Sorrow refers to The University of Texas at Houston. See Tex. Educ. Code Ann. § 73.001.
The correct spelling of this defendant's name is unclear as Sorrow utilizes two different spellings "Seal" and "Seale.". Sorrow also did not reference a first name for this individual until after judgment was rendered.
The Sheriff was the only defendant to appear in the trial court and is the only appellee in this proceeding.
The Sheriff filed a motion for summary judgment, which the trial court denied. The Sheriff filed an amended second motion for summary judgment, arguing statute of limitations and lack of capacity to be sued as a non sui juris entity, which the trial court granted.
The trial court's final judgment states, "It is ordered that Plaintiff's lawsuit against Defendant is dismissed with prejudice. This is a final order and disposes of all claims by and between all parties." See Lehmann , 39 S.W.3d 191, 192–93.
II. ANALYSIS
Sorrow raises nine issues on appeal. We review the claims of an incarcerated litigant proceeding pro se with liberality and patience. Haines v. Kerner , 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) ; see Minix v. Gonzales , 162 S.W.3d 635, 637 n.1 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (discussing applicability of Haines rule in Texas and outside Fed. R. Civ. P. 12(b)(6) context). Sorrow repeatedly cites Haines for the proposition that being a layman "unschooled in law" excuses him from being held to the same stringent standards as lawyers. While we must construe his petition liberally in the light most favorable to him, Sorrow misreads the holding in Haines. See Tex. R. App. P. 38.9 ; see also Minix , 162 S.W.3d at 637. In Haines , the Supreme Court of the United States stated "the allegations of the pro se complaint ... we hold to less stringent standards than formal pleadings drafted by lawyers." 404 U.S. at 520–21, 92 S.Ct. 594. This holding requires pleadings drafted by a pro se litigant to be construed liberally, but does not otherwise excuse pro se litigants from complying with other substantive and procedural rules. Id. Pro se litigants must comply with all applicable rules of procedure and substantive law. Burbage v. Burbage , 447 S.W.3d 249, 258 (Tex. 2014) (explaining that courts may not stray from procedural rules simply because litigant represented self); see also Harrison v. Reiner , 607 S.W.3d 450, 457 (Tex. App.—Houston [14th Dist.] 2020, pet. filed).
A. Trial court did not err in rendering summary judgment
In issue three, Sorrow challenges the factual sufficiency of the evidence supporting the trial court's rendition of summary judgment. Though Sorrow challenges the sufficiency of the evidence, he effectively argues that summary judgment was improper because there were outstanding questions of material fact. We liberally construe his briefing to challenge the trial court's rendition of summary judgment. Tex. R. App. P. 38.9. Sorrow believes the trial court should have held that the discovery rule applied and tolled limitations. In issue eight, Sorrow asserts that the trial court erred in rendering summary judgment because he believes the Sheriff's alleged fraudulent concealment of medical records tolled limitations.
1. Standard of review
We review a trial court's rendition of summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Id. When, as here, a trial court's order granting a motion for summary judgment does not specify the ground or grounds relied on for its ruling, we must affirm the summary judgment if any of the grounds advanced are meritorious. Carr v. Brasher , 776 S.W.2d 567, 569 (Tex. 1989). We must affirm if an appellant fails to challenge all grounds on which the motion for summary judgment may have been granted. Malooly Bros., Inc. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970).
Courts properly render traditional summary judgment if the motion and evidence show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c) ; Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment must conclusively disprove at least one element of the plaintiff's claim or prove every element of an affirmative defense. Friendswood Dev. Co. v. McDade & Co. , 926 S.W.2d 280, 282 (Tex. 1996) (per curiam).
Once the movant facially establishes its right to summary judgment, the burden shifts to the non-movant to present a material fact issue that precludes summary judgment. See City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678–79 (Tex. 1979). Evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions considering all the summary-judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755–57 (Tex. 2007) (per curiam).
2. Discovery rule
In general, constitutional claims that arise in Texas under the state and federal constitutions, including title 42, United States Code, section 1983 claims are governed by the two-year tort statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) ; see Wallace v. Kato , 549 U.S. 384, 387–88, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (holding statute of limitations for section 1983 claim is governed by personal-injury-tort statute of limitations of state in which cause of action arose); Jackson v. Houston Indep. Sch. Dist. , 994 S.W.2d 396, 402 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (Texas Constitution claim). Common-law claims of tort and negligence must also be brought within two years. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (party must bring suit for personal injury not later than two years after day cause of action accrues); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp. , 988 S.W.2d 746, 750 (Tex. 1999) (negligence claims).
Sorrow argues in his appellate briefing that his claim involves a health-care liability claim and is subject to the ten-year statute of repose. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(b). Sorrow did not plead a health-care liability claim or otherwise comply with the statute governing such claims; therefore, that statute of repose is not applicable.
The statute of limitations begins to run when a claim accrues. Murray v. San Jacinto Agency, Inc. , 800 S.W.2d 826, 828 (Tex. 1990). A cause of action accrues when facts come into existence that permit a plaintiff to recover. Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 593 (Tex. 2017). Generally, in the context of a tort, this is when a wrongful act causes an injury. See Sw. Energy Prod. Co. v. Berry-Helfand , 491 S.W.3d 699, 721 (Tex. 2016) ("As a general proposition, a cause of action accrues when a wrongful act causes a legal injury, even if the fact of injury is not discovered until later...."); Murray , 800 S.W.2d at 828. The Sheriff produced summary-judgment evidence that Sorrow was last incarcerated in a Harris County jail on December 11, 2002, and Sorrow admits that the tortious conduct made the basis of his claim occurred in 2001–02. Given that Sorrow filed the underlying lawsuit in 2017, the statute of limitations bars any personal injury or tort claims arising out of his 2001–02 incarceration unless a tolling provision applies.
Statutes of limitations are intended to compel plaintiffs to assert their claims "within a reasonable period while the evidence is fresh in the minds of the parties and witnesses." Computer Assocs. Int'l, Inc. v. Altai, Inc. , 918 S.W.2d 453, 455 (Tex. 1996). It is in society's best interest to grant repose by requiring that disputes be settled or barred within a reasonable time. See id. The discovery-rule exception operates to defer accrual of a cause of action until the plaintiff knows or, by exercising reasonable diligence, should know of the facts giving rise to the claim. Id. The supreme court has described the discovery rule as "a very limited exception to statutes of limitations," and has condoned its use only when the nature of the plaintiff's injury is both inherently undiscoverable and objectively verifiable. Id. at 455–56.
An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations period despite due diligence. S.V. v. R.V. , 933 S.W.2d 1, 7 (Tex. 1996) (citing Computer Assocs. , 918 S.W.2d at 456 ). "Inherently undiscoverable" does not mean that a particular plaintiff did not discover his or her particular injury within the applicable limitations period. Id. Instead, we determine whether an injury is inherently undiscoverable on a categorical basis because such an approach "brings predictability and consistency to the jurisprudence." Apex Towing Co. v. Tolin , 41 S.W.3d 118, 122 (Tex. 2001). Here, Sorrow complains of injuries resulting from the prescription of various medications while he was in pre-trial detention. He does not argue that he was unaware of his injuries or that they were inherently undiscoverable. Instead, he argues that his cause of action was undiscoverable due to the Sheriff's concealment of medical records and the premature destruction of those records. Sorrow's awareness of his alleged legal injuries and ability to bring suit was not dependent on the medical records, as he never received a complete copy of his medical file. Sorrow has been aware of his alleged injuries since 2002, as he admits in his argument for due diligence that he has been in litigation on "these issues one way or another" from 2002 to 2016. Though Sorrow's arguments demonstrate that he has diligently sought information about his medical treatment for more than fifteen years, he has not met the requirements for the application of the discovery rule. Sorrow has not demonstrated that his injuries were categorically undiscoverable, and we conclude the trial court did not err in refusing to apply the discovery rule to toll limitations.
3. Fraudulent concealment
Sorrow also argues that the Sheriff's fraudulent concealment of medical records tolls limitations. The party asserting fraudulent concealment must establish that the defendant (1) actually knew a wrong occurred, (2) had a fixed purpose to conceal the wrong, and (3) did conceal the wrong. Shell Oil Co. v. Ross , 356 S.W.3d 924, 927 (Tex. 2011). "Fraudulent concealment only tolls the running of limitations until the fraud is discovered or could have been discovered with reasonable diligence." BP Am. Prod. Co. v. Marshall , 342 S.W.3d 59, 67 (Tex. 2011). The discovery-rule exception and tolling based on fraudulent concealment are distinct concepts. See Computer Assocs. , 918 S.W.2d at 456. The fraudulent-concealment doctrine, unlike the discovery rule, resembles equitable estoppel. Wagner & Brown, Ltd. v. Horwood , 58 S.W.3d 732, 736 (Tex. 2001). When the defendant is under a duty to make a disclosure but fraudulently conceals the existence of a cause of action from the one to whom it belongs, the guilty party will be estopped from relying on the defense of limitations until the right of action is, or in the exercise of reasonable diligence should be, discovered. Nichols v. Smith , 507 S.W.2d 518, 519 (Tex. 1974). A party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary-judgment motion and to come forward with summary-judgment evidence raising a fact issue on each element of the fraudulent-concealment defense. See KPMG Peat Marwick , 988 S.W.2d at 749.
While Sorrow certainly raises the issue of fraudulent concealment in his argument, he did not offer any summary-judgment evidence to support his claims. Sorrow attached to his summary-judgment response seven different exhibits, some of which are difficult to understand. In particular, Sorrow cites to a letter, included in his summary-judgment evidence, from the Harris County Sheriff's Office to Sorrow in 2011 stating that at his request 14 pages of records were mailed to Sorrow in 2003, and 35 pages were mailed to him in 2004. Sorrow characterizes the letter as establishing that "21 pages had been hidden in admittance" by the Sherriff. He also argues that he was in the custody of the Sheriff for over a year and had extensive medical treatment that is not reflected in the records provided to him. It is understandably frustrating that Sorrow has not been able to receive complete records for all the medical care he recalls receiving. However, Sorrow's argument for fraudulent concealment is based upon his speculation that his records were purposefully and wrongfully destroyed. The evidence in the record simply does not support that theory.
For purposes of this discussion, we need not address admissibility or other evidentiary issues relating to Sorrow's summary-judgment evidence. Tex. R. App. P. 47.1.
Sorrow further attempts to support his theory of fraudulent concealment by referencing two conflicting dates for the destruction of his medical records provided by the Sheriff. He cites to the correspondence from the Harris County Sheriff's Office in 2011 indicating that his records were destroyed in September 2010. Sorrow also attaches a document that appears to be a request for Sorrow's medical records. Though the request is dated May 6, 2010, the document is not on any type of letterhead and it is unclear from whom or to whom the correspondence is directed. Sorrow's summary-judgment evidence also includes an undated document from "Adrian Garcia____ Sheriff" that appears to be a response to a request for release of information stating Sorrow's requested records have been "purged/Destroyed." Because Sorrow received this document in May 2010, he argues that the Sheriff fraudulently concealed his records from him and then destroyed them.
However, assuming the summary-judgment evidence establishes two conflicting dates for the destruction of Sorrow's medical records, there still is no evidentiary support for his theory that the Sheriff fraudulently concealed Sorrow's medical records, or more importantly for this analysis, his cause of action. Sorrow's ability to receive copies of his medical records is distinct from his cause of action. There is no evidence in the record supporting Sorrow's claim of fraudulent concealment. Because there is no summary-judgment evidence supporting Sorrow's argument that the discovery rule or the Sheriff's alleged fraudulent concealment of medical records toll limitations, we overrule issues three and eight.
Sorrow challenges the Sheriff's second summary-judgment ground in issue four, which liberally construed challenges the Sheriff's second ground for summary judgment that the Sheriff lacks capacity to be sued as a non sui juris entity. Tex. R. App. P. 38.9 ; see also Malooly , 461 S.W.2d at 121.
4. Rule of optional completeness
In issue five, Sorrow argues the factual sufficiency of the Sheriff's summary-judgment evidence does not establish a defense for incompleteness. He cites to Crosby v. Minyard Food Stores, Inc. , 122 S.W.3d 899, 903 (Tex. App.—Dallas 2003, no pet.), which addressed the two threshold requirements for introducing evidence pursuant to Texas Rule of Evidence 107. Sorrow further argues the "Rule of Optional Completeness" should have been invoked with regard to the Sheriff's affidavits as they were confusing and "do not create a proper defense on control of drugs, as a matter of law." Texas Rule of Evidence 107 provides: "If a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent." Tex. R. Evid. 107. Sorrow misunderstands the "Rule of Optional Completeness," and neither Rule 107 nor Crosby support his arguments. Id. ; see Crosby , 122 S.W.3d at 903.
Sorrow did not attempt to offer any evidence pursuant to Rule 107, nor did the trial court exclude any evidence offered by Sorrow. Tex. R. Evid. 107. Because the trial court did not exclude any evidence under Rule 107, we have no ruling to review in that regard. See Bren-Tex Tractor 10 Co., Inc. v. Massey-Ferguson, Inc. , 97 S.W.3d 155, 161 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (overruling complaint because trial court made no ruling on issue). We overrule issue five.
B. Trial court erred by rendering summary judgment before service of citation
In issue seven titled "Defective Service of Citation," Sorrow argues that the trial court erred by dismissing all claims and all parties in its final judgment before all the parties had been served. Sorrow further argues that the Sheriff hid addresses and contact information of other defendants preventing Sorrow from serving the other potential parties. We review the court's dismissal for an abuse of discretion. See Gamboa v. Alecio , 604 S.W.3d 513, 515 (Tex. App.—Houston [14th Dist.] 2020, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985).
Rule 161, on which Sorrow relies for the proposition that the court abused its discretion in dismissing the unserved defendants, provides the following: "When some of the several defendants in a suit are served with process in due time and others are not sot so served, the plaintiff may either dismiss as to those not so served and proceed against those who are, or he may take new process against those not served, or may obtain severance of the case as between those served and those not served...." Tex. R. Civ. P. 161. It is undisputed that Sorrow never voluntarily dismissed the unserved defendants, and he further attempted to serve the unserved defendants with citation before the summary-judgment hearing in his second request for citation.
Sorrow's second request for citation was filed in June 2018 before the trial court rendered summary judgment. Though Sorrow did file a third request for citation requesting that citation be issued for "Medical Doctor Michael Seale," Sorrow's request was filed on April 8, 2019, after this appeal had commenced and long after the trial court lost plenary power. We do not consider Sorrow's third request for citation because it is not relevant to the question of whether the trial court erred in dismissing the unserved defendants in August 2018.
The Sheriff argues that Sorrow had the burden to properly serve all defendants, and that the dismissal of the unserved defendants was not error. See Tex. R. Civ. P. 99(a) ("The party requesting citation shall be responsible for obtaining service of citation and a copy of the petition."). However, the Sheriff's argument misses the mark. There is no question that Sorrow failed to properly effectuate service on the unserved defendants. The issue raised by Sorrow is whether the trial court erred in dismissing the unserved defendants that Sorrow was actively attempting to serve with process.
While Sorrow's second request for citation failed to list any address at which service could be accomplished, extinguishing the possibility of actual service, Sorrow clearly wished to proceed against the unserved defendants, and the Sheriff's motion for summary judgment understandably did not state a ground concerning the unserved defendants. The trial court, however, unequivocally rendered a final judgment under Lehmann : "This is a final order and disposes of all claims by and between all parties." 39 S.W.3d at 192–93. The Sheriff did not seek summary judgment on behalf of the unserved defendants, yet the trial court sua sponte granted more relief than the Sheriff requested in the formation of the judgment, which in addition to granting the Sheriff's interlocutory motion for summary judgment, also "dispose[d] of all claims by and between all parties," i.e. , disposed of all of Sorrow's claims. The judgment does not grant any specific relief on the claims against the unserved defendants. Under these circumstances, we construe the judgment to minimize the effect on Sorrow's claims against the unserved defendants, which is that the judgment dismisses without prejudice the claims against the unserved defendants. Bella Palma, LLC , 601 S.W.3d at 802 ("Irrespective of its legal completeness or correctness, the ... judgment was final and appealable because there was no question the trial court intended it to be so.... If the final judgment is deficient, the remedy comes by appeal, not by the deprivation of appellate jurisdiction."); cf. Constance v. Constance , 544 S.W.2d 659, 660 (Tex. 1976) (when construing judgments, "what the court had adjudicated is to be determined from a fair reading of all the provisions of the judgment"). That error in judgment formation was harmful error. Tex. R. App. P. 44.1 ; see Lehmann , 39 S.W.3d at 200 ("A judgment that grants more relief than a party is entitled to is subject to reversal...."); see also G&H Towing v. Magee , 347 S.W.3d 293, 298 (Tex. 2011) ("The court of appeals should treat such a summary judgment as any other final judgment, considering all matters raised and reversing only those portions of the judgment based on harmful error.").
In his second request for citation, Sorrow states he did not have addresses for three of the four unserved defendants: (1) Harris County Sheriff—Prior Sheriff (address unknown); (2) Dr. Seal (address unknown); (3) University of Houston Science Center, employer of Dr. Seal (address unknown). Harris County was the only unserved defendant for which Sorrow provided an address; however the address he provided for Harris County was that of the Sheriff's counsel and was not an address for proper service of process on a county. See Tex. R. Civ. P. 33 ; Tex. Civ. Prac. & Rem. Code Ann. § 17.024 ("In a suit against a county, citation must be served on the county judge.").
While the final judgment does not use the exact language from Lehmann , the language used by the trial court reflects the intent to "unequivocally" and "expressly dispose[ ] of all claims and all parties." Lehmann , 39 S.W.3d at 200.
The supreme court does not require a non-movant to except to a motion for summary judgment that does not state grounds addressing all of non-movant's claims. See McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 342 (Tex. 1993) (plurality op.) ("When the motion for summary judgment clearly presents certain grounds but not others, a non-movant is not required to except."); see also Chessher v. Sw. Bell Tel. Co. , 658 S.W.2d 563, 564 (Tex. 1983) (per curiam) ("The court of appeals concluded that Chessher had waived his tort claims by failing to raise them in his response to the motion for summary judgment."). The policy reason for this is simple, there is no error because movant can file a motion for either an interlocutory summary judgment, i.e. , a partial summary judgment, or a final summary judgment. The non-movant has no burden to except on the basis that the motion is interlocutory, which is perfectly acceptable, and no burden to otherwise request, object, or move to preserve a complaint for appellate review. See Tex. R. App. P. 33.1(a). But does non-movant have to preserve a complaint for appellate review during judgment formation if the trial court sua sponte takes action outside the grounds in the motion for summary judgment, e.g. , rendering a final summary judgment when the motion on its face states only grounds to support an interlocutory judgment?
This court has addressed the issue of sua sponte error in judgment formation, as opposed to error in the motion for summary judgment itself. See 1001 McKinney Ltd., v. Credit Suisse First Boston Mortg. Capital , 192 S.W.3d 20, 26 n.2 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Neither 1001 McKinney Ltd. , McConnell , nor Chessher specifically addresses the appellate preservation-of-error rule, former Texas Rule of Appellate Procedure 52(a) and current Texas Rule of Appellate Procedure 33.1. If on its face a summary-judgment motion never sought a final summary judgment, there would be nothing to except to, not because of Rule 166a or Chessher or McConnell , but simply because the motion was interlocutory on its face. If the rationale underlying McConnell and Chessher does not apply to a summary-judgment motion interlocutory on its face, then the reasoning of 1001 McKinney Ltd. seems circular, but it is nonetheless this court's precedent that no additional request, objection, or motion is necessary to preserve a complaint for appellate review that the trial court erred in rendering a final summary judgment when the motion did not state specific grounds to support summary judgment on all of non-movant's claims. Accordingly, we hold that the complaint was preserved and the trial court committed harmful error in dismissing the unserved defendants.
Our analysis in 1001 McKinney Ltd. is as follows:
Appellees contend appellant waived any error in the judgment by failing to advise the trial court that it had granted summary judgment on grounds that were not presented in the motion. For this proposition, appellees cite GXG, Inc. v. Equitable Bank–Dallas , 1997 WL 51210 (Tex. App.—Dallas 1997, no writ), in which the court of appeals held that a trial court's granting of more relief than requested in the motion for summary judgment is not fundamental error and is waived unless raised in the trial court. Appellees have not cited, nor have we been able to find, any other court that has followed the reasoning in GXG. The supreme court found in McConnell that a non-movant is not required to except to a movant's failure to assert specified grounds in the motion for summary judgment. 858 S.W.2d at 342. We therefore decline to require such an exception.
192 S.W.3d at 26 n.2.
The caselaw could—but does not appear to—attempt to argue that a trial court's rendition of a final summary judgment based on a facially interlocutory motion for summary judgment fits within the exception of Texas Rule of Appellate Procedure 33.1(d), Sufficiency of Evidence Complaints in Civil Nonjury Cases.
As part of issue seven, Sorrow attributes his failure to provide service information for the unserved defendants to the Sheriff's refusal to provide the information to him. Though Sorrow does not assert the trial court committed any errors regarding the Sheriff's discovery, he asks that the trial court compel the Sheriff to produce information in the Sheriff's possession. While Sorrow did file a request for production as well as a motion to compel production, neither were set for hearing or submission with the court. Sorrow never secured a ruling, or refusal to rule, from the trial court on his request, motion, or his other discovery objections; therefore, he failed to preserve any error for our review with regard to the Sheriff's responses to discovery. Tex. R. App. P. 33.1(a).
We sustain issue seven in part as to the dismissal of the unserved defendants and overrule it for all other purposes.
C. Trial court's failure to rule on pending motions
In issue two, Sorrow complains that the trial court failed to rule on a variety of motions that were pending at the time the Sheriff's summary-judgment motion was granted. After the trial court rendered a final judgment, Sorrow filed his "Request for Written Rulings T.R.A.P. 33.1(a)(2)(A)" seeking rulings from the trial court on various pending objections and motions. Sorrow argues that the trial court still possessed plenary power, and its failure to rule on his various pending motions constituted an abuse of discretion.
The Rules of the Civil Trial Division of the Harris County District Courts, which have been approved by the Supreme Court of Texas, require that motions be heard either by written submission or by an oral hearing. Harris (Tex.) Civ. Dist. Ct. Loc. R. 3.3.3, 3.3.4; see Tex. R. Civ. P. 3a (authority to make local rules for civil cases in trial courts and requirement that those local rules be approved by Supreme Court of Texas). Sorrow does not allege, nor does the record reflect, that Sorrow complied with any of the local rules by setting any of his motions or objections for oral hearing or consideration by submission. Therefore, Sorrow has not shown that the motions the trial court allegedly failed to rule on were properly before the trial court. We overrule issue two.
Sorrow filed a petition for writ of mandamus to compel the trial court to rule on his pending motions on October 1, 2018. In re Sorrow , No. 14-18-00851-CV, 2018 WL 4925129, at *1 (Tex. App.—Houston [14th Dist.] Oct. 11, 2018, no pet.). This court denied Sorrow's petition for writ of mandamus because the trial court had rendered a final appealable judgment, and Sorrow had not shown he lacked an adequate remedy by appeal.
D. Objection to "finding" that Harris County Sheriff was not a party
In issue four, Sorrow argues that the trial court erred in holding that the Sheriff was not a party to the lawsuit. The record reflects that the Sheriff appeared and was defending the suit. The record also does not reflect the trial court made any such holding, nor does Sorrow cite to any document in the record reflecting such a holding. We overrule issue four in part. To the extent that Sorrow challenges the Sheriff's second summary-judgment ground that the Sheriff lacks capacity to be sued as a non sui juris entity, we do not reach this argument as the trial court's judgment is supportable on the statute-of-limitations ground. Tex. R. App. P. 47.1.
E. Objection to violation of the one-judgment rule
In issue six, Sorrow suggests that the trial court signed two judgments, violating the one-judgment rule. See Tex. R. App. P. 301 ("Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law."). The trial court considered two different summary-judgment motions, denying the first motion. An order denying a motion for summary judgment is not a final judgment and is therefore generally not appealable. See Cincinnati Life Ins. Co. v. Cates , 927 S.W.2d 623, 625 (Tex. 1996) ; Tobin v. Garcia , 159 Tex. 58, 316 S.W.2d 396, 400 (1958). The denial of the Sheriff's summary judgment was an interlocutory order, and did not constitute a final judgment that violated the one-judgment rule.
Sorrow also argues that the Sheriff should not have been allowed to file a second or a second amended summary-judgment motion because the Sheriff's original summary-judgment motion was denied and the Sheriff did not seek leave of court. The appellate record reflects the trial court had signed a docket-control order, which required summary judgments to be heard by August 10, 2018. See Tex. R. Civ. P. 166. It is undisputed that the Sheriff's amended second motion for summary judgment was filed well before the deadline, and we presume the trial court granted leave to hear the motion after the deadline in the docket-control order. Sorrow relies upon Texas Rule of Civil Procedure 63 for his argument that the trial court abused its discretion by allowing the Sheriff to file a second and second amended motion for summary judgment without leave of court, though the rule does not support his position See Tex. R. Civ. P. 63 (leave of court required only within seven days of trial or after deadlines set by trial court pursuant to Rule 166 ). Sorrow's only other legal authority— Sosa v. Central Power & Light , 909 S.W.2d 893, 895 (Tex. 1995) (per curiam) —addresses the timeliness of a second amended petition exactly one week before a summary-judgment hearing. It does not support or even address his position in this appeal. Id. Because we conclude there was no error in the trial court's consideration of the Sheriff's amended second summary-judgment motion, we overrule issue six.
It is also undisputed that the court heard the Sheriff's second summary-judgment motion after the deadline in the trial court's docket-control order. However, Sorrow has not challenged inadequate notice of the hearing, nor has he argued any surprise or prejudice for the delay of the summary-judgment hearing. We presume that the court granted leave to the Sheriff to hear his summary-judgment motion after the deadline in the docket-control order. Tex. R. Civ. P. 63 ; see Goswami v. Metro. Sav. & Loan Ass'n , 751 S.W.2d 487, 490 (Tex. 1988) (leave of court presumed when record is silent as to any basis to conclude pleading was not considered by trial court, and when non-movant has not shown surprise or prejudice).
F. Objection to failure to sever claims
In issue nine, Sorrow argues that the trial court erred by not properly severing his claims brought under federal law from those claims brought under state law. See 42 U.S.C. § 1983 ; Tex. Civ. Prac. & Rem. Code Ann. § 101.021. He cites to the prayer in his petition, which states that he prays the court order a hearing to "determine if severable." Sorrow also mentions that the "parties" were not properly severed. Because Sorrow did not properly request a ruling from the trial court and object to the trial court's failure to rule, Sorrow has not preserved error for appellate review. Tex. R. App. P. 33.1(a). We overrule issue nine.
G. Incomplete record on appeal
In issue one, Sorrow objects to the appellate record as incomplete and argues his case will be prejudiced because he is unable to cite to the trial court's errors in his argument. Sorrow filed an objection to the appellate record, and also requested in his brief that this court "correct" the appellate record. Pursuant to Texas Rule of Appellate Procedure 34.5(c), this court directed the district clerk to prepare a supplemental clerk's record containing the items that Sorrow requested in his objection to the clerk's record and that were omitted from the initial clerk's record. Tex. R. App. P. 34.5(c) ("If a relevant item has been omitted from the clerk's record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify and file in the appellate court a supplement.").
Issue one was not an allegation of error in the trial court's final judgment.
On January 25, 2021, a supplemental clerk's record was filed with the clerk of this court. The supplemental clerk's record contained three documents—discovery addressed by Sorrow to the Sheriff, as well as to unserved defendants Harris County and Dr. Seal. Not present in the record are five documents requested by Sorrow and identified as his "Request citation to all parties," "Harris Countys Disclosure," " ‘Harris Countys’ (sic) Interrogatory Answers," "Petition for Writ of Mandamus," and "Notification by Trial Court Clerk." Because the record has been supplemented to the extent of documents in the possession of the district clerk, we overrule issue one.
III. CONCLUSION
Having (1) overruled issues one, two, three, four (in part), five, six, seven (in part), eight, and nine and (2) not reached the remainder of issue four, we affirm the judgment of the trial court in part as challenged on appeal as to the dismissal with prejudice of Sorrow's claims against the Sheriff. Having sustained issue seven in part, we reverse the trial court's judgment in part as challenged on appeal to the extent that it dismisses Sorrow's claims against the unserved defendants. We remand the case to the trial court for further proceedings limited to Sorrow's claims against the unserved defendants, including any severance of those claims from the summary judgment against the Sheriff. Tex. R. App. P. 53.2(a), (d).
( Spain, J., concurring).
CONCURRING OPINION
Charles A. Spain, Justice
Must a non-movant for summary judgment preserve a complaint for appellate review under Texas Rule of Appellate Procedure 33.1(a) when a trial court sua sponte and erroneously renders a final summary judgment based on a motion for partial summary judgment? Without citing the predecessor to Rule 33.1, this court's precedent is that preservation is not required, because "[t]he supreme court found in McConnell that a non-movant is not required to except to a movant's failure to assert specified grounds in the motion for summary judgment." See 1001 McKinney Ltd., v. Credit Suisse First Boston Mortg. Capital , 192 S.W.3d 20, 26 n.2 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 342 (Tex. 1993) (plurality op.)). While I must follow this precedent, I respectfully disagree because the plain language of Rule 33.1(a) requires preservation.
Here is the reasoning of the Dallas Court of Appeals that this court declined to follow:
We agree that GXG and Knox had no reason to object or except to the scope of Equitable's motion, because a motion for partial summary judgment is neither defective nor objectionable. We are not requiring a nonmovant to object or except to a motion for summary judgment because the motion presents only some but not all of the claims pending before the trial court....
When an error surfaces for the first time in a judgment, the complaining party must necessarily bring the error to the trial court's attention post-judgment.... In these cases, the parties' inability to anticipate the trial court's error did not excuse them from bringing the error to the trial court's attention post-judgment to afford the trial court an opportunity to correct the error.
To complain about an error on appeal, a party must preserve its complaint in the trial court. Tex. R. App. P. 52(a)....Rule 52 of the Texas Rules of Appellate Procedure applies to summary judgment proceedings.... In the trial court, the complaining party must identify the objectionable matter sufficiently for the opposite party to cure the error and for the trial court to know the nature of the alleged error....
Notwithstanding the trial court's erroneously disposing of numerous causes of action, GXG and Knox never brought this error to the trial court's attention and never gave opposing counsel or the trial court the opportunity to correct the error.... The granting of more relief than requested in the motion for summary judgment constitutes error, not fundamental error.... If the trial court commits an error of th[is] magnitude in the case, the parties need to bring the error to the trial court's attention. Nothing prevented GXG and Knox from filing a post-judgment motion. Requiring a postjudgment motion to preserve error is not unprecedented.... We perceive nothing fundamentally unfair or unjust in requiring an appellant to preserve error post-judgment. We conclude that GXG and Knox failed to preserve error. Tex. R. App. P. 52(a).
GXG, Inc. v. Equitable Bank–Dallas , No. 05-95-00478-CV, 1997 WL 51210, at *4–5 (Tex. App.—Dallas Feb. 10, 1997, no writ) (not designated for publication) (citing 1986 Tex. R. App. P. 52(a), 49 Tex. B.J. 556, 573 (Tex. Apr. 10, 1986), revised by 1997 Tex. R. App. P. 33.1(a), 60 Tex. B.J. 876, 903–04 (Tex. Aug. 15, 1997) ).
Justice Morris is correct in his analysis. I cannot say it better. But while this court's holding on summary-judgment formation in 1001 McKinney Ltd. is clearly erroneous, until overruled by the en banc court or the supreme court, it is this court's precedent.