In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-10-00075-CV

______________________________

JASON BLAKENEY, Appellant

V.

CLIFTON L. HOLMES AND JOE SHUMATE, Appellees

 

On Appeal from the Fourth Judicial District Court

Rusk County, Texas

Trial Court No. 2008-379

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter
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MEMORANDUM OPINION

Jason Blakeney was represented by appointed counsel Clifton L. Holmes and Joe Shumate 

after being indicted for capital murder in 2002. Pursuant to a negotiated plea agreement, 

Blakeney pled guilty to a lesser included offense of murder and was sentenced to life 

imprisonment. Over six years later, Blakeney filed an action for fraudulent misrepresentation, 

―tortious interference with prosecutive business relations,‖ and breach of fiduciary duty against his 

appointed counsel, claiming they had reneged on a promise to pay him $8,000.00 to plead guilty to 

murder so they would not have to go to trial. 

Holmes and Shumate filed no evidence and traditional motions for summary judgment 

denying the existence of such an agreement. In his response, Blakeney referred to the following 

as summary judgment evidence:1 Holmes’ responses to requests for admission denying any 

promise for payment made to Blakeney; docket sheets from Blakeney’s criminal case; a letter from 

the Holmes law office enclosing copies of ―TDCJ inmate trust fund deposit slip and Regions Bank 

money order secured by Defendant Holmes,‖ which Blakeney’s pleadings argued were a first 

installment of the $8,000.00 promised; and proof that Holmes and Shumate represented him in the 

criminal case. The trial court granted Holmes’ and Shumate’s motions for summary judgment. 

 

1Blakeney also referred to pleadings, which are not summary judgment evidence. Laidlaw Waste Sys. (Dallas), Inc. 

v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).
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We affirm the trial court’s judgments.2

I. Blakeney Did Not Preserve Error on Recusal and Default Judgment Points of Error

Blakeney alleges for the first time on appeal that the trial judge was required to recuse due 

to possible impartiality. He also complains of the trial court’s failure to rule on his motion for 

default judgment. To preserve a complaint for appellate review, a party must make the complaint 

to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1). 

Preservation also requires one of three things: (1) an express ruling by the trial court; (2) an 

implicit ruling by the trial court; or (3) a refusal to rule by the trial court, coupled with an objection 

to that refusal by the complaining party. TEX. R. APP. P. 33.1(a)(2). This record contains no

evidence that the issue of recusal was raised with the trial court. Also, the motion for default 

judgment was filed after Holmes had answered the suit and six days before Shumate filed his 

answer. Consequently, there is no ruling on the motion for default judgment and no objection to 

the trial court’s refusal to rule, if any. The record demonstrates that these issues were not 

preserved below, and we decline to address them. TEX. R. APP. P. 33.1. 

II. Trial Court Properly Granted Summary Judgment 

A. Standard of Review

Next, Blakeney raises eight other grounds, essentially complaining that the trial court erred 

 

2Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme 

Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005). We are 

unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant 

issue. See TEX. R. APP. P. 41.3.
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in granting the motions for summary judgment.3 We employ a de novo review of the trial court’s 

grant of a summary judgment, which is based on written pleadings and written evidence. Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Lamar v. City of Longview, 270 

S.W.3d 609, 613 (Tex. App.—Texarkana 2008, no pet.); see TEX. R. CIV. P. 166a(c). Summary 

judgment is proper if Holmes and Shumate established that there was no genuine issue of material 

fact and that they are entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); French v. 

Gill, 252 S.W.3d 748, 751 (Tex. App.—Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 

496, 497 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co., 

690 S.W.2d 546, 548 (Tex.1985)). 

During our analysis of the traditional motion, and in deciding whether there is a disputed 

material fact issue which precludes summary judgment, proof favorable to the nonmovant will be 

taken as true, and every reasonable inference will be indulged in their favor. Limestone Prods. 

Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Nixon, 690 S.W.2d at 548–49. A 

no-evidence summary judgment is essentially a pretrial directed verdict. We, therefore, apply the 

same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in 

reviewing a directed verdict to determine whether the nonmovant produced any evidence of 

 

3Blakeney complains the trial court erred in granting the motions for summary judgment because: ―the Appellant 

filed a Motion for Judgment Nihil Dicit and where both Appellees DENIED paying the Appellant,‖ the ―Appellees 

committed perjury,‖ ―the Appellant plead [sic] fraud which is a fact issue for a jury to decide,‖ ―Intent is a fact issue,‖ 

a ―fact issue existed as to the duty the Appellees owed the Appellant,‖ and ―Appellant filed a Motion for Subpoena 

Duces Tecum requesting the trial court’s assistance in securing‖ ―the balance of money that inmate Blakeney departed 

with from custody of the Rusk County Sheriff’s Department on April 22nd, 2002‖ and ―possessed upon arrival to the 

Texas Department of Criminal Justice Institutional Division.‖ 
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probative force to raise a fact issue on the material questions presented. Wal-Mart Stores, Inc. v. 

Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Woodruff v. Wright, 51 S.W.3d 727 (Tex. 

App.—Texarkana 2001, pet. denied). Blakeney will defeat a no-evidence summary judgment 

motion if he presents more than a scintilla of probative evidence on each element of his claim. 

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

The trial court’s summary judgments specified no particular ground as supporting the 

summary judgment. When, as is the case here, the trial court does not set out the grounds on 

which it ruled, we affirm the summary judgment if any ground urged in the motion for summary 

judgment is meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

B. Application

To raise an issue of fact regarding his fraudulent misrepresentation claim, Blakeney was 

required to produce more than a scintilla of probative evidence on the first element that Holmes 

and Shumate made a material representation; in this case, that there was a promise to pay 

$8,000.00 in exchange for Blakeney’s plea of guilt. Tex. Integrated Conveyor Sys., Inc. v. 

Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 366 (Tex. App.—Dallas 2009, pet. denied); 

Baribeau v. Gustafson, 107 S.W.3d 52, 58 (Tex. App.—San Antonio 2003, pet. denied). The 

only documents referencing such an agreement were Blakeney’s pleadings. ―Neither pleadings 

nor responses to summary judgment motions constitute summary judgment evidence.‖ Watson v. 

Frost Nat’l Bank, 139 S.W.3d 118, 119 (Tex. App.—Texarkana 2004, no pet.) (citing Laidlaw 
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Waste Sys., 904 S.W.2d at 660). Moreover, a document relied on by Blakeney, Holmes’ 

responses to requests for admission, specifically denied the existence of a material representation. 

We find that Blakeney presented no proof of the first element of his fraudulent misrepresentation 

claim. 

Next, in order to avoid summary judgment on his tortious interference with business 

relations cause of action, Blakeney was required to present more than a scintilla of evidence that:

(1) there was a reasonable probability that he would have entered into a contractual relationship; 

(2) an independently tortious or unlawful act by Holmes and Shumate prevented the relationship 

from occurring; (3) the act was done with a conscious desire to prevent the relationship from 

occurring or with knowledge that the interference was certain or substantially certain to occur as a 

result of his conduct; and (4) Blakeney suffered actual harm or damage as a result of the 

interference. See Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 412 (Tex. App.—Eastland

2002, pet. denied); Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 414–15 (Tex. App.—Waco 

2001, pet. denied). The elements of breach of fiduciary duty are: the existence of a fiduciary 

relationship, and a breach of duty by the fiduciary that causes damages to the client or improper 

benefit to the fiduciary. Burrow v. Arce, 997 S.W.2d 229, 237 (Tex. 1999). There was no 

evidence presented with regard to these elements for either cause of action, and Blakeney’s 

responses to the motions for summary judgment stated simply that he would ―not waste the court’s 

time rehearsing here.‖ 
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We find that Holmes and Shumate established that there were no genuine issues of material 

fact with regard to any of Blakeney’s causes of action and that Blakeney did not present more than 

a scintilla of probative evidence on each element of his claims. Therefore, Holmes and Shumate 

were entitled to judgment as a matter of law. 

III. Conclusion 

We affirm the trial court’s judgments. 

Jack Carter

Justice

Date Submitted: November 9, 2010

Date Decided: November 10, 2010