## In the Court of Appeals Second Appell ate Distri ct of Te xas

at Fort Worth

___________________________ No. 02

- 20

- 00361

- CV

___________________________

On Appeal from the 431st District Court Denton County, Texas Trial Court No. 20

- 5246

- 431

Before Ke rr, Birdw ell, and Walker, JJ. Memorandum Opinion by Justice Wa lker 

### K ENNETH 

### O KONKWO 

### , Appellant

V


### . C ONNECTIONS 

### W ELLNESS 

### G ROUP 

### , LLC AND 

### L ANDON 

### A WSTIN 

### G REGG 

### , App ellees2 M E MORANDUM OPINION Kenneth Okonkwo filed this pro se appeal from a final summary judgment imp osing a permanent injunction against him and awarding damages to appellees
Conne ctions Wellness Group, L LC and its owner and C h ief Executi ve Offic e r, Landon Awstin G re gg (collectively, Conne ctions)

. A lthough Okonkwo ’ s brief barely meets the minimum stand ards for form and substance, 1 we are able to discern fi ve distin ct ar gu ments : (1) the permanent injunctiv e relief is a n unconstitutio nal prior
restrain t on speech; ( 2) the trial court ruled on the motion for summary judgment before Okonkwo ’ s time to file a response had elapsed ; (3) Connections failed to prove the elements of its invas i on of pr i vacy and assaul t claims, including damages ; (4) Okonkwo prove d h e did not commit the ac ts alleged by Conne ctions and, thus, raised a genuine issue o f material fact defeating summary judgment ; and (5) the trial

court failed to co nsider his affirmat ive defenses

. W e affirm the trial court ’ s judgment.
I. BACKGROUND
Connec tions sued Okonkwo for damag es and permanent injunctive relief on three causes of action: (1) tortious interference with prospective relatio ns ; (2) i nvasion

1 See Tex. R. App. 38.1(f

), 38.9; Weeks Marine, Inc. v. Ga rza , 371 S.W.3d 157, 162 (Tex. 2012) ; Dinkins v. Calh oun , N o. 02

- 17

- 00081

- CV, 2018 WL 2248572, at *7 (Tex. App.

— Fort Worth May 17, 2018, no pet.) (mem. op.) ; see also Craaybeek v. Craaybeek , No. 02

- 20

- 00080

- CV, 2021 WL 1803652, at * 3

– 4 (Tex. App.

— Fort Wort h May 6, 2021, pet. denied) (mem. op. ) ( observing tha t pro se appellants are bound by the rules of appell ate procedure and exp laining diff erence between flagrant rules violations and violations that nevertheless presen t grounds for review ).3

of privacy; and (3) bodily

- i njury

- t hreat assault

. The petition alleged that after
Connections Wel lness fi r ed Okonkwo for falsifying hi s professional qualifications,
Ok onkwo retaliated by sending racist and threatening t ext and voice mai l messages to Connections ’ employee s , while posing as Gregg

. Okonk wo raised affirmative defenses in his answer and filed a motion to dismiss the suit , which he titled “ TCPA Dismissal Un der Rule 91a Per Col lateral
Est oppel , a nd Res Judicata See Generally Tex. Civ. Prac. & Rem. Code Ann §§ 27.00 1

– .011. ” In this motion , he appear ed to generally seek d ismissal under both
the TCPA a nd Rule 91a. Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001

– .011; Tex. R.
Civ. P. 91a

. Okonkwo also denied engaging in the conduct u nderlying Connecti ons ’
claims

. A f ter Connect

ions filed a response to Okonkwo ’ s dismissal motion , contending that he had done noth ing more than raise fact issues, t he tr ial court de nied Okonkwo ’ s motion to dis miss and awarded Connections $5,000 i n attorney ’ s fees.
Connections then filed a m otio n for summary judgment in which it contended it had
prov en all of it s claims as a m atter of law becau se Okonkwo had failed to resp on d to
i ts requests for admissions , resulting in th e ir deeme d admis sion and es tablishing all
elements of its causes of action

. Okonk wo di d n ot respond to the motion for
summary judgme nt , nor did he re quest withdrawal of the deemed admissions

. The trial court granted th e summary judg ment motion and si gned a final judgment awarding Connec tions $24,264.84 in actual damage s and a permanent4

injunction enjoi ning Okonkwo from (1) contac ting Gregg or any Connect ions Wellness employee or age nt by ph one, text, email, or other electronic means , “ with
the intent to harass, alarm, annoy, torment[,] or terrorize ” ; (2) impersonating Gre gg or any Connections Wellness e mployee or agent by phone, text, email, or ot her means; (3) m aking any disparaging remarks about Gregg, Connections W e llness, or any C onnections Wellnes s e mployee or agent; and (4 ) aiding, abetting, inducing, directing,

o r enticing a ny person to engage in any of the acts enjoined in (1)

– (3). Okonkwo filed this appeal. H e makes five discer nible arguments in his br ief: (1) The perman ent in junction is an unconstitutional prior restraint on speech

. (2) T he trial court improperly prevented Okonkwo from sub mitting his own evidence because t he tri al court granted summary jud gment prematurely

. (3) Connec tions failed to prove Okonkw o committed an invasion o f privacy or assault and, thus, it failed to establish any damages

. ( 4 ) Okonkwo proved that he did not commit the acts C onne ctions alleged its petition

. ( 5) The trial c ourt failed to address all of Okonkwo ’ s affirmative defen se s .

II. UNPRESERVED COMPLAINT S
A. P REMATURE R

ULING In his sec ond discernible issue, Okonkwo complains that the trial court did not give him ade qu ate time to respond to Connections ’ motion for summary judgment

. He bases his complaint on a letter from the trial court dated October 16, 2020, the5

day Connections filed its motion

. In the le tter, the trial court indicates t hat it ha d set the motion for submission on Novem ber 13, 2020: A Motion for Summ ary Judgment h as been filed in this cause and will be decided w ithout argument at the Court ’ s earliest convenience following the submission date referenced above

. Please note that . . . t he submission date is the same as a hearing d ate fo r purpos es o f cal cul ating the deadline to file a respon se to the motion or for m ovant ’ s reply to the response, if any.

. . . . Respondent shall pr ovide the C ourt with a courte sy copy of the Response to the MSJ.

. . . In order to ensure a timely ruling on the m o t io n, these materials must be submitted in har d copy form to my court admin istrator

. . . no e arlier than th e su bmission date and no later than seven ( 7) days after the submiss ion date. P leas e note t h at if you send these materials to the Distri ct Clerk, I will n ot see them and my decision on your motion will be delayed. [Emphasis added.]
Error

- prese rvation rules apply to summary judgmen t proceedings. See Seim v.
Allstate Tex. Lloyds , 551 S.W.3d 161, 1 64 (Tex. 2018) ; s ee also T ex. R. App. P. 33. 1(a)

. Thus , a nonmovant must preserve a n inadequate

- notic e complaint in the trial court

. See , e.g. , May v. Nacogdoch es Mem ’ l Hosp. , 61 S.W.3d 623, 626 (Tex. App.

— Tyler 2001, no pet .) ; Smith v. Mike Carlso n Motor Co. , 918 S.W.2d 669, 673 (Tex. App.

— Fort Wo rth 1996, no writ) ; see also Rockwell v. Wells Fargo Bank, N.A. , No. 02

- 12

- 00100

- CV, 20 12 WL 4936619, at *1 (T ex. App.

— Fort Worth Oct. 18, 2012, no pet.) (mem. op.)6

(noting differen ce between compla i nt of inad equ ate notice before summary judgment submissio n date and complaint of no notice at all)

. O k onkwo failed to argue and obtain a rulin g from the tri al cour t on his

co mplaint t hat the trial court erroneously granted summary judgme nt prematurely

–– b e fore t he trial co urt ’ s letter deadline for filing courtes y copies of document s . 2 We therefore overrule his second identified issue.
B. P ERMANENT I NJUNCTION AS P RIOR R ESTRAINT ON S PEECH The majority of Okonkwo ’ s br ief is devoted to his a rgument that the
p ermane nt

- injunc tive relief granted in t he final judgment constitutes an impermissibl e prior restrain t on his free

- speech right unde r Article I , Section 8 of the Texas
Constitution. Although Okonkwo raised this argu men t in some of his pre

- summary

judgment filing s
–– his req u est to dissolve t he temporary restraining order and his motion to dismiss the suit

–– he did not file a ny document responsive to the motion for summary judgment, nor did he file any postjudgment motio ns. General ly, the nonmovant must expr e ssl y p resent to the t rial court any reasons for avoiding the movant’ s right to summary judgment. S ee Tex. R. Civ. P. 166a(c) ;

2 Even if Okonkw o had preserved his complaint, we wou l d overrule it. Conne c tions filed its motion on October 1 6, 2020, and the tr ial court signed its judgment on November 16, 2020. Therefore, t he motion was on file more than twenty

- one days be fore th e trial court rule d o n it. See T ex. R. Civ . P. 166a (c) ( “ Except on leave of co urt, with notice to opposing couns el, the motion and any supporting affidavits shall be filed and served at least twenty

- one days before the time specified for hearing. ” )

. And O konkwo failed to fil e a summary judgment response durin g that time.7

D.R. Horton

- Tex., Ltd. v. Markel Int’l Ins. , 300 S.W.3d 740, 743 (Tex. 2 009 )

. T h is includes e ven constitutional complaints

. Se e In re L.M.I. , 119 S. W.3d 707, 711 (Tex. 2003) ; In re S.V. , 599 S.W. 3d 25, 40 (Tex. App.

— Dall as 2017, pet. denied) ( complaint
that in junction c onstituted a prio r restraint on free

- speech right ); In r e F .E.N. , 542 S.W.3d 752, 768 (Tex. App.

— Houston [14th D i st. ] 2 018) (op. on reh ’ g) , pet. deni ed , 579 S.W.3d 74 (Tex. 2019) (d ue
- process viol ation ). Because Okonkwo did not raise this complaint in response to the summary judgment motion or in a postjudgment motion challengi ng the ju dgment, we hold that
he faile d to preserve th ese tw o arguments for appeal. See T ex. R. App. P. 33.1(a)(1);
S.V. , 59 9 S.W.3d at 40

. We overrule his first identified issue.

III. S UMMARY JUDG MENT MERITS
Ok onkwo ’ s three remaining issues rela te to t he merits of the summary judgment

. A
. C ONNECTIONS ’ M OT ION In his third dis cernible issue, Ok onkwo argues that Connection s failed to prove its invasion of priva cy and assault claims and , thus , its ent itlement to damages. But Okonkwo did not brief a general complaint as to the summary judg me n t ’ s propriety ,

no r di d he specifically challenge the sufficiency of the evidence to support the

tor tious

- interference

- with

- pro spective

- relations claim

. An appellant may challenge a summary judgm ent by making either a gen eral assignment of error coveri ng all possible gr ou nds (a “ Malooly issue”) or specific8

assignments of error for ea ch individual ground. See Malooly Bros. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970) ; Matney v. Harbor Gardens Condom iniums (P hase II)
Ass ’ n of Owners , No. 02

- 16

- 00272

- CV, 20 17 WL 5494252, at *2 (Te x. App.

— Fort Worth Nov. 16, 2017, no pet.) (mem. op.). “Wh en an argument is not made challenging every ground on which the summary judgment could be based, we are required to affirm t he summary judgment, regardless of the merits of t h e unch allenged gr ound .” Matney , 2017 WL 5494252, at *2

. Conne ctions moved for summary judgment on all three of it s pleaded claims ,

a nd the trial court ’ s summary judgmen t and d amages award was ge neral ; it granted the
summary judgment “ in all things

. ” B ec a use Okonkwo has no t c hallen ge d all grounds on which the summary judgment could have been b ased, we overrule his third ide ntified issue.
B. N O R ESPONSE As his fourth disc ernib le issue, Okonkwo argues throughout his brief that he
prov ided proof that he d i d not commit the under lying acts alleged in Connections ’ petition. But in the trial court, Okonkwo did not respond to the summary judgment
motion a ccording to Rule 1 66a (c)

. Tex . R

. Ci v. P. 166a (c)

. “ [ I ] s sues a non

- movant

co ntends avoid the movant ’ s enti t lement to summa ry jud gment must be expressly presented by written answer to the motion or by other written response to th e motion and are not expre ssly presented by mere reference to summary judgment evide nce . ”
McConnell v. Southside ISD , 858 S.W.2d 337, 341 (Tex. 1993)

. By not filing a response9

accor ding to Rule 166a (c) , Okonkwo pro vided no evidence t o defeat Connections ’ entitlement to summary ju dgment according to the ci vil

- pro cedure rules. We
therefo re overrule his four th identified issue.
C
. A FFIR M ATIVE D EFENSES Relat ed to his fourth issue, Okonkwo argues that the tria l co urt erred by failing to consider his aff

irmative defense s. But i f a n onmovant relies on an affirmative defense to op p o se a summ ary judgment motion, he must come forward with

sum m ary judgment ev

i dence sufficient to raise a fact issue on each ele ment of the defense to avoid summary judgment. Brownlee v. Brownlee , 665 S.W.2d 111, 112 (Tex. 1984). Although Okonkwo raised aff ir mative defen ses in his ans wer and in other filings not r e sponsive to Con nectio ns ’ summary judgment motion , he file d no answer or respon se specific to the summary judgme nt motio n and did not proffer compet ent
summary judgm ent evidence raising a genuine issue of m ate rial fact on each element
of his affirmative de f

enses , as w as h is bur de n. See Reed v. Lake Country Prop. Owners
Ass ’ n, Inc. , No. 0 2

- 17

- 00136

- CV, 2017 WL 6759146, at *3 (Tex. App.

— Fort Worth
Dec. 28, 2017, pet. d enied) (mem . op.); Lujan v. Navistar Fin. Co rp. , 433 S.W.3d 6 99, 704 (Tex. App.

— Houston [1s t Dist.] 2014, n o pet. ). Thus, Connections needed only to conclusively establish its clai ms, not de feat Okonkwo ’ s pleaded

- but

- no t

- proved affirmativ e defenses

. Lujan , 433 S.W.3d at 7 04

. We ov errule his fi fth identified issue

.10 I V. CONCLUS ION
H aving ove r ruled the five distin ct complaints we have identified in Okonkwo ’ s brief, we affirm the trial court ’ s judgment

. /s/ Br ian Walker
Brian Walker Justice Delivered: May 5, 2022