### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00190- CV

P ete r Hellm uth Eggert, Appellant

v. State of Texas, Appellee

F ROM CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 11- 0067 49, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Peter Hellmuth Eg g ert appeal s t h e trial court’s summary judgme nt in favor of the State of Texas in a suit to collect amounts due on two promissory notes for student loans on which
E gger t was a g uara

ntor on behalf of his son. See Tex. Educ. Code Ann. § 52.39 (West 2012 ) (authorizing attorney g ener al to su e i n T ra v i s County to collect money due on promissory notes obtained to financ e colleg e educa tion under student-loan prog ram). I n two issues on appea l, Eg g ert

asser ts that the summary judgme nt resulted from a varie ty of proce dural and substantive err ors and judicial impropriety . We will affirm.

DISCUSSIO N

I n his f irst a ppellate issue, Eg g ert contends that he was denied due proc ess bec ause (1) the trial court ruled on the s ummary -judg ment motion with o u t first having ruled on his timely filed motion to transfe r venue, (2) there is no court repor ter’s rec ord of the summary -judg menthear ing, (3) the trial court ruled on the summary -judg ment motion even though a discovery reque st

was pending , (4) the evidenc e was insufficient to support summary judgme nt, and (5) the setting of the summary -judg ment hear ing befor e the setting of a hear ing on the motion to transfe r venue raises questions of judicial impropriety . We will address ea ch ar g ument in turn.

First, Eg g ert contends that the t ri al co urt err oneously ruled on the State’s
summary -judg ment motion without first having held a hear ing and issued a ruling on his timely filed motion to transfe r venue from Travis County , Texas to San Antonio, Texas. We hold that Eg g ert failed to prese rve error as t o his ven ue-tra nsfer motion by failing to set it for a hear ing and s ecur e

a ruling

. I n the alterna tive, we hold that the trial court’s failure to set a hear ing sua sponte and rule on the motion is harmless error in this case.
I n his moti on to transfe r venue , Eg g ert re quested that the court s et a hear ing on his motion to transfe r venue “at least 45 day s from the date of filing of this motion,” but Eg g ert does not alleg e—and t h e re co rd does not ref lect—that he took any other action to set a hearing or secure a ruling on the m otion in the three months betwee n filing the motion and the hear ing on the m otion for summary

judgme nt. I

n addition, more than one month before the summary -judg ment hear ing, Eg g ert objected to the “pre mature setting” of the summary -judg ment hear ing based, in pa rt, on the fac t that the motion to transfe r venue was pending

. Howeve r, Eg g ert still made no attempt to set the
matter for a hear ing or secur e a ruling on either his venue- transfe r motion or his motion to continue the summary -judg ment hear ing. As a result, the State contends that Eg g ert failed to prese rve err or and wa ived the venue issue on appea l. We ag ree .

2I t wa s E g g e r t’ s r e sponsibili ty to reque st a hear ing, pursue a setting, and obtain a ruling

on the motion to transfer ve nue. See Tex. R. C iv. P. 87(1) (“The movant has the duty to reque st a setting on the motion to transfe r [venue].”); Tex. R. App. P. 33.1 (to prese rve complaint for appellate revie w, rec ord must s h o w t h at trial court expressly or implicitl y ruled on the matter); see also,
e.g. , Corona v. Pilgrim ’s P r i d e Corp. , 245 S.W .3d 75, 84-85 (Tex. App.—Texarkana 2007, pet. denied) (“Corona waived any issue conce rning venue b y n ot reque sting a hear ing or ruling .”); Clif f Jones, Inc. v. Ledbetter , 896 S.W .2 d 417, 418-19 (Tex. App.—Houston [1st Dist.] 1995, no writ) (holding venue issue waived beca use appellant “did not pursue the matter to a clea r ruling prior
to trial”); Grozier v. L-B Sprinkler & Plumbing Repair , 7 4 4 S

. W .2d 306, 311 (Tex. App.—For t Worth 1988, writ denied) (“We find the fac t that appellant did not rese t his motion for hear ing afte r the motion had first bee n set but not heard or otherwise r

uled upon is aff

irmative evidence that he waived his motion to transfe r venue.” ). E gger t failed to prese rve err or and waived any issue

conce rning venue by

not reque sting a

hear ing or

ruling

. Even if Eg g ert had prese rved err or, he could not show reve rsible err or. See Tex. R. App. P. 44.1 (setting standard for reve rsible err or). Eg g ert’s motion to transfe r venue was premised

on a selec tive quotation of section 52.39 of the Texas Ed u cation Code, a mandatory venue provision which the State ag ree s controls the venue deter mination in this matter. See Ramirez

v. State , 550 S.W .2d 121, 124-25 (Tex. Civ. App.—Austin 1977, no writ) (holding t hat section 52.39 specifie s mandatory venue in three lo ca tions, one of which is Travis County ). Section 52.39 provides:

3When an y person who has rec eived a loan authorized by this chapte r has failed or

ref used to make as many as six monthly p aym en t s d ue in acc ordanc e with an executed note, then the full amount of the rema ining principal and interest become s due and pay able immediately , and the amount d u e, t h e person’ s name and his last known addre ss, and other nece ssary i n fo rmation shall be repor ted by the [Tex as Hig her Educa tion Coordinating Boa rd or its succe ssors] to the attorney g ener al. Suit for the remaining sum shall be instit uted by t h e at t o rn ey g ener al, or any county or district attorney acting for him, in the county of the person’s residence , the county in which is located the instit ution at which the person was last enrolled, or in Travis Co u n ty , u n less the attorney g ener al finds rea sonable justification for delay ing s u it a n d so advises the boa

rd in writing

.
Educ. Code § 52.39 (empha sis added). Eg g ert’s motion to transfe r venue only quoted t he portion of the statute s p ec i fy i n g the county of the defe ndant’s residenc e or county of the instit ution as mandatory venue locations. The statute, howeve r, plainly authorizes the State to file suit in T ravis County

. Be cause Eg g er t fa i l ed to asser t any other basis upon which the trial court could have conclude d that venue was not proper in Travis County , he has failed to establish reve rsible err or on
appea l. See Tex. R. Civ. P. 87(1) (objec ti o n t o i m p roper venue waived if not asser ted prior to or

concur rently with any other pl ea d i ng , except specia l appea ranc e), 87(3) (re quiring venue- transfe r motion to specify leg al and fac tual basis why county wher e suit is pending is improper or exis tence of manda tory

venue pr ovision). Second, Eg g ert complains about th e absenc e of a court repor ter’s rec ord of the
summary -judg ment hear ing. Although Eg g ert did not attend the hear ing and the rec ord does not ref lect that he reque sted a rec ord prior to the hear ing, Eg g ert relies on a proce dural require ment that

an officia l court repor

ter or rec order “attend court sessions and make a full re co rd o f the
proce eding s” “unless excused by ag ree ment of the parties.” See Tex. R. App. P. 13.1. Howeve r, the
supreme court has stated that failure to make a rec ord of a summary -judg ment proce eding is not err or
4beca

use the cre ation of a repor ter’s rec ord i s “‘a prac tice neither nece ssary nor appropr iate to the
purposes of such a hear ing.’ ” Schneide r Nat’l Carriers, Inc. v . Bates , 147 S.W .3d 264, 291 n.141 (Tex. 2004) (quoting McCon n el l v. S outhside Indep. Sch. Dist. , 858 S.W .2d 337, 343 n.7 (Tex.1993)). At a summary -judg ment hear i ng , a trial court’s decision is based solely on written pleading s and evide nce, r ather than l ive t estimony

. Tex. R. Civ. P. 166a(c ). Beca use a r eporte r’s

rec ord i s not essential to our review of the i ssues raised in this appeal, e ither no err or i s prese nted
or any err or in not producing a re porter’ s rec ord is harmless. 1 Third, Eg g ert compl ains that the trial court err oneously ruled on the State’s
summary -judg ment motion despite the State’s fa ilure to respond to his pe nding discovery reque st. Nea rly one month afte r the State g ave notice of the summary -judg ment hear ing and approximately

one month befor e the hear ing, Eg g ert serve d “De fenda nt’s First Request for Production ” o n the State. Contemporaneously with serving these reque s t s , ap p ellant filed a motion to continue the
summary -judg ment hear ing on the basis that the hear ing was “pre mature,” citing the pending venue transfe r motion, the possibili ty of asser ting a statute of fra

uds defe nse, and the fac t that the case was subject to a level 1 discovery control plan. Appellant reque sted that the summary -judg ment hear ing be continued until “a time afte r the expiration of the discovery period,” but did not re fer to any

Eg g ert cites three case s in which reve rsible err or was found based on the absenc e of a court 1 repor ter’s r ecor d. See Sm ith v. Smith , 544 S.W .2d 121, 123 (Tex. 1976); Sharif v. Par Tech, I nc. , 135 S.W .3d 869, 873 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Alvarado v. Reif , 783 S.W .2d 303, 305 (Tex. App.—Eastland 1989, no writ). Those case s, howeve r, involved traditional trials on the merits at which evidenc e and testimony w e re admitted and, thus, are proce durally distinguishable from the summary -judg ment context. 5o utstanding discovery reque sts. Eg g ert did not set this motion for a hear ing or obtain a ru l i n g.

Acc ording ly , Eg g ert ha s not preser ved er ror f or appe llate re view. See Tex. R. App. P . 33.1.
Even if err or had been prese rved, the trial court would not have abused its discretion in deny ing the motion for continuance

. Under the rules of civil proce dure, a party seeking to rec over
upon a claim “may , at any time afte r the adver se party has appeare d o r answe red, move with or without supporting aff

idavits for a s u m m ar y j u dg ment in his favor upon all or any part there of.”
Tex. R. Civ. P. 166a(1) (empha sis added)

. “When a party contends that it ha s not ha d an adequate opportunity for discovery bef o re a summary judgme nt hear ing, it must file either an aff idavit explaining the need for further discovery or a verifie d motion for continuance .” Tenneco Inc.

v. Enterprise Prods. , 925 S.W .2d 640, 647 (Tex. 1996) (citing Tex. R. Civ. P. 166a(g ), 251, and 252,
g overning summary -judg ment proce dure and continuance s). Eg g ert did neither. I n fac t, nothing in the motion to continue the summary -judg me n t hear ing aler ted the trial court to the pending discovery
reque sts, and the motion only infere ntially hinted at the need for additional discovery by ref ere ncing the discovery control plan and reque sting that the h ea ri n g b e postponed until afte r the discovery deadline, which was open-e nded at that point. Fur thermore , Eg g ert did not appea r at the summary 2 judgme nt hear ing to obtain a ruling on the motion for continuance or to complain about the State’s

Under a level 1 discovery control plan, the discove ry period c loses thirty

day s befor e the 2 date se t for trial. Te x . R. Civ. P . 190.2(c) (1). 6failure to respond to his discovery reque sts. We c onclude that there was no err or, or to the extent 3 there was, such e rror

has not bee n prese rved f

or appe llate re view.
Four th, Eg g ert challeng es th e me r it s o f th e s u mm a r y ju d g me n t, asser

ting that the State submitt ed “inac cura te summary judgme nt evidenc e and untrue aff idavits” in support of its motion. Eg g ert fur

ther c ontends that there is no proof of a prior demand for pa y ment. To obtain summary judgme nt on a g uara

nt y ag ree ment, a party must conclusively establish: (1) the exis tence and

owner ship of the g uara

nty contra ct; (2) the perf

ormanc e of the terms of the contra ct by the plaintiff; (3) the occur

renc e of the con d i t i o n o n wh i ch liability is based; and (4) the g uara ntor’s failure to perf orm. See, e.g. , Corona , 245 S.W .3d at 80. I n this case , the third element require s the failure or ref usal to make as many as six monthly pay ments due in a ccor dance with a note on a student loan. See Tex. Educ. Code Ann. § 52.39.

I n support of its motion for summary judgme nt, the State submitt ed an aff idavit from Chery l Be llesen, a student-loan collections manag er, attesting to all of t he el em en t s of t he S tate’s cl ai m and that demand for pay ment was repe atedly made without succe ss. I n addition, the State

s u b m i t t ed the guar anty ag ree ment bear ing Eg g ert’s name and notarized signa ture. Eg g ert did no t object to any of the State ’s s u m mary -judg ment evidenc e. Eg g ert also did not submit any
controve rting evidenc e, althoug h he now claims that he did not sign the g uara nty ag ree ment befor e

The State claims it never rec eived the discovery reque sts beca use they wer e sent to th e 3 g ener al post office box addr es s for the attorney g ener al but wer e not addre ssed to any attorney of rec ord. The cer

tificate of service confirms that the reque sts wer e sent to the addre ss provided by the State’s counsel of rec ord but wer e not dir ecte d to a ny one in pa

rticular, including any attorney who had appe are d on the State’s beha lf. 7a notary , that his social secur ity number is incorre ctly stated on the g uara nty ag ree ment, and that no demand f or pay ment has eve r bee n made. “A summary

judgme nt ma

y be based on uncontrove rted testimonial e vidence of an expert witness,

. . . if the evid en ce is clea r, positive and direc t, otherwise cre dible and fre e from
contra dictions and inconsistences, and co u l d have been rea dily controve rted.” Tex. R. Civ. P. 166a(c ). Eg g ert does not point to any contra dictions or inconsistencies in Be llesen’s aff idavit, and her testimony could have been controve rted by his own aff idavit, but was not. Ba sed on the evidenc e in the summary -judg ment rec ord, the trial court proper ly deter mined that there was no g enuine issue of mater ial fac t and that the State wa s entitled to judgment a s a matter of law. See Tex. R. Civ. P

. 166a(c ). Finally , Eg g ert que stions the propriety of the State’s a

nd the trial cour

t’s actions in setting the hear ing on the State’s summary -j udg ment motion while a hear ing was not set on his motion to transfe r venue. There is no claim that the State failed to provide proper notice of the
summary -judg ment hear ing or the summary -judg ment evidenc e. See Tex. R. Civ. P. 166a(c ) (establishing time limit s for setting summary -judg ment hear ing and fi l i n g s ummary -judg ment evidenc e). Rather, Eg g ert sug g ests, without any evidenc e or supporting authority , that the State was able to secur e a hear ing setting only throug h some unspecifie d “judicial impropri et y ” o r ex parte communication. This c laim is without mer it. The Travis County local rules permit either pa rty to
set a hear ing by contac ting the judicial aide for the county court. Travis County (Tex.) L oc. R. 2.3. There is no evidenc e that the Sta t e used any improper means to obtain a hear ing setting.

8Fur

thermore , there i s n o s u gges t i on or evidenc e that Eg g ert was denied the opportunity to set a hear ing in a ccor dance with local rule 2.3.

We conclude that all of the g rounds alleg ed in support of Eg g ert’s first appellate issue

are without merit. We further hold that Eg g ert was not denied due proce ss, but rathe r that he failed
to use proce dures available to protec t his interests. Acc ording ly , we overr ule his first appellate issue.
I n his second appellate issue, Eg g ert summarily asser ts—without elabor ation—that

the proce dural events in th e ca s e at bar could be a violation of the Texas Code of J udicial Conduct’s Can o n 1 (Upholding the I nteg rity and I ndepende nce of the J udiciary ); Canon 2 (Avoiding I mpropriety and the Appea ranc e of I mpropriety in All of the J udg e’s Activities); and Canon 3 (Perf orming the Duties of J ud i ci al Offic e I mpartially

and Dilig ently

).
Eg g ert does not explain or support this contention. Acc ording ly , we consider the issue inadequa tely briefe d and decline to consider it. See T ex . R

. Ap p . P

. 3 8

. 1(h). I t is well settled that “a pro se litigant is held to the same standards as licensed attorney s and must comply with applicable laws and rules o f p rocedure.” Strange v. Continental Cas. Co. , 126 S.W .3d 676, 677 (Tex. App.—Dallas 2004, pet. denied)

. When, as here , an issue on appea l is inadequa tely briefe d, “we cannot specula te as to the substance of the spec ific issues appe llant claims we must addre ss.” Id. at 678.

Alternatively , to the extent appellate issue two is based on the alleg ations of subst an tive and proce dural err or addre ssed in Eg g ert’s first appellate issue, we have found no

reve rsible err or in the trial court’s actions complained of in the first issue. Acc ording ly , even if those actions “could be a violation” of the cited provisions of the Code of J udicial Conduct, the alleg ations of error provide no basis fo r reversing the t rial court’s judgme nt. To the ex tent Eg g ert complains

9about the trial c ourt’s fa ilure to a ffirma tively rule on his motion for new tr ial (which is mentioned

only briefly in the summary of the arg ument), we observe that there is no evidenc e that Eg g ert was denied a reque sted hear ing on his motion for new trial. Fur thermore , the rules of civil proce dure do
not require a trial court to aff irmatively rule on a motion for new trial. See Tex. R. Civ. P. 329b(c) (motion for new trial not deter mined by written order signe d within seventy -five day s afte r judgme nt

was signe d “shall be considere d overr uled by opera tion of law on expiration of that period” ).
Be cause we f

ind no merit in any

of these issues, w e over

rule Eg g ert’s se cond appe llate issue.

CONCLUSION Having overr

uled Eg g ert’s a

ppellate issues, we aff

irm the trial cour

t’s judgme nt.

____________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Apr il 24, 2013

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