### NUMBER 13

- 10

- 00 03 8

- C V



## COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

COLUMBUS ERIC JOHNSON SR., Appellant,

v.

ORANGE RIVER ROYALTIES

, L.L.P.,

PATRICK BEATHARD, AND

NICHOLAS S. BRESSI, Appellee s.

On appeal from the 2 3rd District Court

of Wharton County, Texas

.



## MEMORANDUM OPINION

Before Justices Garza, Vela, and Perkes

Memorandum Opinion by Justice Garza

In this appeal, appellant Columbus Eric Johnson Sr., appearing pro se,

challenges the trial court’s summary judgment in favor of appellees, Orange River

Royalties, L.L.P., Patrick Beathard, and Nicholas S. Bressi. Johnson, an inmate at the

Mark W. Michael Unit of the Texas Department of Criminal Justice

- Institutional Division,2

contends that the trial court erred: (1) by granting summary judgment because it “never

considered any evidence due to [Johnson] not being allowed to at[t]end any

proceedings”; and (2) by denying Johnson’s motion for contin uance. We affirm.

I. B ACKGROUND

In 2004, Johnson negotiated with Orange River Royalties, L.L.C. (“ORR”), to sell

his oil, gas, and mineral interests in various lots of land, comprising 2.9540 acres in

total, located in Wharton, Texas. The deeds serving to transfer Johnson’s interests

were filed in the official records of Wharton County, Texas, in January and February of

2004. In May of 2004, ORR discovered that the deeds were defective and needed to be

corrected. According to appellees, corrected deeds were filed on June 8, 2004.

Subsequently, ORR sued Johnson, claiming that, despite executing warranties of

title prior to the sale, he did not hold good title to the mineral interests because he had

previously sold the interests to another party. Appellees assert that, on April 1, 2005,

ORR made an offer of settlement to Johnson. Under the proposed settlement, Johnson

would grant to ORR all of his mineral interests in various additional Wharton properties,

totaling 5.1625 acres; and, in exchange, ORR would pay Johnson $25,000. The

proposed settlement also provided that each party would release any and all claims

against the other. On or around April 11, 2005, Johnson sent a handwritten letter to

Bressi, ORR’s attorney, stating in part that “I will accept the offer.” ORR then prepared

the paperwork and sent it to Johnson at the Michael Unit. According to appellees,

Johnson signed a “Complete Release and Settlement” on May 4, 2005, and executed a

deed transferring his mineral interests pursuant to the settlement agreement. Upon

receiving the executed settlement agreement and deed, Beathard, ORR’s owner, filed3

the deed and tendered payment of $25,000 to Johnson.

Four years later, in June of 2009, Johnson filed suit against ORR, Beathard and

Bressi, asserting claims of fraud, negligent misrepresentation, and breach of warranty of

title in connection with (1) ORR’s correction of the 2004 deeds and (2) the 2005

settlement. On August 6, 2009, appellees filed a motion for traditional and no

- evidence

summary judgment. Attached to the motion was an affidavit executed by Beathard

accompanied by several exhibits, including correspondence between the parties, that

substantiate the version of events relayed by appellees. In response, Johnson f iled

objections and a cross

- motion for summary judgment, contending that he is entitled to

summary judgment as a matter of law. Johnson attached several exhibits to his motion,

including a letter by Bressi acknowledging that the deeds originally filed in January and

February of 2004 contained errors, and discovery responses provided by ORR in the

2005 suit. The trial court scheduled a hearing on January 19, 2010 on the competing

motions for summary judgment.

On January 11, 2010

, Johnson filed an “ affidavit ” in which he: (1) noted that he

would be unable to attend the January 19, 2010 hearing because he is incarcerated; (2)

stated that he has “appointed” his sister and mother to “appear in court at the hearing

on his behalf”; and (3) set forth various questions that he apparently wished his

representatives to ask appellees at the hearing. Johnson also moved for a continuance.

The trial court granted appellees’ motion for summary judgment on January 19, 2010.

The record before this Court contains no ruling on the motion for continuance. This

appeal followed. 1

1 Johnson filed his original appellant’s brief on June 14, 2010. On November 16, 2010, we struck

the brief for failure to comply with the appellate rules, see T EX

. R. A PP

. P. 38.1, and abated the appeal to4 II. D ISCUSSION

A. Motion for Summary Judgment

For a no

- evidence summary judgment motion to be successful, the party seeking

the judgment must assert that no evidence exists as to one or more of the essential

elements of the non

- movant ’ s claims upon which he would have the burden of proof at

trial. See T EX

. R. C IV

. P. 166a(i); Holmstr om v. Lee

, 26 S.W.3d 526, 530 (Tex. App.

–

Austin 2000, no pet.). Ultimately, the burden of producing evidence to defeat a no

evidence motion for summary judgment is placed upon the non

- movant. See Alaniz v.

Hoyt

, 105 S.W.3d 330, 344 (Tex. App.

– Corpus Christi 2003, no pet.). When responding

to a no

- evidence motion, the non

- movant is only required to present evidence that

raises a genuine fact issue on the challenged elements. S ee AMS Constr. Co., Inc. v.

Warm Springs Rehab. Found., Inc.

, 94 S.W.3d 152 , 159 (Tex. App.

– Corpus Christi

2002, no pet.) (citing McCombs v. Children's Med. Ctr.

, 1 S.W.3d 256, 258 (Tex. App.

–

Texarkana 1999, pet. denied))

.

Because a no

- evidence summary judgment is essentially a pre

- trial directed

verdict, we apply a legal suffici ency standard of review. See AMS Constr. Co.

, 94

allow Johnson to redraw the brief. Johnson filed a handwritten substitute brief on February 3, 2010.

Appellees subsequently moved to dismiss the appeal or affirm the trial court’s judgment

, contending that

Johnson’s substitute brief also fails to comply with the applicable rules. See, e.g., Mansfield State Bank

v. Cohn

, 573 S.W.2d 181, 185 (Tex. 1978) (“Litigants who represent themselves must comply with the

applicable procedural rules, or else they would be given an unfair advantage over litigants represented by

counsel.”). We find that Johnson’s substitute brief, though far from exemplary, addresses the

shortcomings identified by this Court in our November 16, 2010 order

. Accordingly, appellees’ motion to

dismiss the appeal or to affirm the trial court’s judgment is DENIED.

Appellees also moved, in the alternative, for an extension of time to file a supplemental appellees’

brief responsive to Johnson’s substitute brief. Because we find that appellees’ initial bri ef adequately

addresses the issues raised by Johnson in his substitute brief, we find that any supplemental briefing is

unnecessary. Accordingly, appellees’ motion for extension of time to file a supplemental brief is also

DENIED.5

S.W.3d at 159 ; Holmstrom

, 26 S.W.3d at 530

. Under such a review, a n o

- evidence

point will be sustained when the record reveals:

(a) a complete absence of evidence of a vital fact; (b) the court is barred

by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact; (c) the evidence offered to prove a vital fact is

no more than a mere scintilla; [or] (d) the evidence establishes

conclusively the opposite of the vital fact.

City of Keller v. Wilson

, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, “No

Evidence” & “Insufficient Evidence” Points of Error

, 38 T EX

. L. R EV

. 361, 362

- 63 (1960)).

In reviewing a trial court ’ s summary judgment

, “ all evidence is to be construed in favor

of the non

- movant, to whom every reasonable inference is allowed and on whose behalf

all doubts are resolved. ” Entravision Commc ’ n Corp. v. Belalcazar

, 99 S.W.3d 393, 399

(Tex. App.

– Corpus Christi 2003, pet. denied) (citing Alvarez v. Anesthesiology Assocs.

,

967 S.W.2d 871, 874 (Tex. App.

– Corpus Christi 1998, no pet.))

Here, Johnson presented no evidence in response to appellees’ motion for

summary judgment

. After more than five months of time within which to conduct

discovery, the onl y evidence Johnson was able to produce in response to appellees’

motion for summary judgment was an unsworn document repeating the allegations

made in Johnson’s complaint. Although an inmate may submit a n unsworn declaration

in lieu of a sworn affidavit, see T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 132.001(a) (Vernon

Supp. 2010 ), such a declaration must be “ subscribed by the person making the

declaration as true under penalty of perjury. ” Id. § 132.002(2) (Vernon 2005 ); 2 see

2 Section 132.001(a) of the civil practices and remedies code provides that :

Except as provided by Subsection (b), an unsworn declaration made as provided by this

chapter by an inmate in the Texas Department of Correction s or in a county jail may be

used in lieu of a written swo rn declaration, verification, certification, oath, or affidavit

required by statute or required by a rule, order, or requirement adopted as provided by

law.6

Bahm v. State

, 219 S.W.3d 391, 393

- 94 (Tex. Crim. App. 2007) (discussing the

statutory requirements of an unsworn declaration). Johnson’s response to appellees’

motion for summary judgment, filed on August 20, 2009, did not contain a declaration

that the allegations ma de therein were true under penalty of perjury. Accordingly, the

response was insufficient to be considered an unsworn declaration in lieu of an affidavit

under the civil practice and remedies code

. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §

132.002(2). 3

Moreover, a mere pleading or response to a summary judgment motion does not

satisfy the burden of coming forward with sufficient evidence to prevent summary

judgment

. Am. Petrofina v. Allen

, 887 S.W.2d 829, 830 (Tex. 1994) ; see City of

Houston v. Clear Cr

eek Basin Auth.

, 589 S.W.2d 671, 678 (Tex. 1979 ) ; see also Bullock

v. McLean , No. 13

- 07

- 00204

- CV , 2 008 Tex. App. LEXIS 6383 , at *9 (Tex. App.

– Corpus

Christi Aug. 21, 2008, no pet.) (mem. op.)

. Johnson therefore failed to produce more

than a scintilla of probative evidence to raise a genuine issue of material fact as to any

of his claims against appellees

. See City of Keller

, 168 S.W.3d at 810; Jackson

, 979

S.W.2d at 70

- 71.

With respect to Johnson’s co ntention that the trial court erred because it “never

considered any evidence due to [Johnson] not being allowed to at[t]end any

proceedings ,” we note that a trial court is not required to conduct a hearing on a motion

T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 132.001(a) (Vernon 2005 ). Section 132.002 states that “ [a]n

un sworn declaration made under this chapter must be: (1) in writing; and (2) subscribed by the person

making the declaration as true under penalty of perjury. ” Id. § 132.002 (Vernon 2005).

3 Johnson’s “affidavit” filed on January 11, 2010 did contain a declaration in compliance with

section 132.002. See id. However, the document merely set forth questions that Johnson requested to

be asked of appellees at the summary judgment hearing; it di d not set forth any allegations that would

raise a genuine issue of material fact as to Johnson’s claims.7

for summary judgment , and even if such a hearing is held, no oral testimony may be

presented there

. See T EX

. R. C IV

. P. 166a(c ) (“No oral testimony shall be received at

the hearing.”) ; Martin v. Martin, Martin & Richards, Inc. , 989 S.W.2d 357, 359 (Tex.

1998) (“ An oral hearing on a motion for summary judgment may be helpful to the parties

and the court, just as oral argument is often helpful on appeal, but since oral testimony

cannot be adduced in support of or opposition to a motion for summary judgment, an

oral hearing is not mandatory. ” ); In re Am. Media Consol. , 121 S.W.3d 70, 74 (Tex.

App.

– San Antonio 2003, orig. proceeding).

W e conclude that the trial court did not abuse its discretion by granting appellees’

motion for no

- evidence summary judgment without holding a hearing

. Johnson’s first

issue is overruled

. 4

B. Motion for Continuance

By his second issue, Johnson argues that the trial court erred in not granting his

motion to continue the hearing set for January 19, 2010. Johnson’s motion, filed on

January 12, 2010, argued that a c ontinuance was warranted because he is incarcerated

and “to ensure that his appointee[]s will be available to attend the hearing.”

The granting or denial of a motion for continuance is within the trial court’s sound

discretion. State v. Wood Oil Distrib.

, Inc. , 751 S.W.2d 863, 865 (Tex. 1988). The

exercise of such discretion will not be disturbed on appeal unless the record discloses a

clear abuse of discretion. Id. Texas Rul e of Civil Procedure 251 provides that a motion

for continuance cannot be granted “ except for sufficient cause supported by affidavit, or

by consent of the parties, or by operation of law. ” T EX

. R. C IV

. P. 251. Johnson appears

4 Because we find that the trial court did not err by granting appellees’ motion for summary

judgment on no

- evidence grounds, see T EX

. R. C IV

. P. 166a (i)

, we need not address whether appellees’

traditional motion for summary judgment was also meritorious. See T EX

. R. A PP

. P. 47.4.8

to argue that his inability to be present at the Jan uary 19, 2010 hearing warranted a

continuance. However, a trial court is not required to grant a motion for continuance

just because a party is unable to be present at trial. See, e.g., Ngo v. Ngo , 133 S.W.3d

688, 693 (Tex. App.

– Corpus Christi 2003, no p et.) . Moreover, as noted, a trial court is

not required to hold a live hearing on a motion for summary judgment. See T EX

. R. C IV

.

P. 166a(c )

. Instead, the trial court is empowered to rule on the summary judgment

motion on submission, without hearing argument. See M artin , 989 S.W.2d at 359.

Accordingly, even if the trial court erred by declining to grant Johnson’s requested

continuance, such error would not be reversible. See T EX

. R. A PP

. P . 44.1(a) (providing

that no error is reversible unless it (1) probably caused the rendition of an improper

verdict, or (2) probably prevented the appellant from properly presenting the case to the

court of appeals). We overrule Johnson’s second issue.

III. C ONCLUSION

The judgment of the trial court is affirmed.

DORI CONTRERAS GARZA

Justice

Delivered and filed the

10 th day of March , 2011

.