NUMBER 13-07-087-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

MARYLYN WARREN, Appellant,

v.

CITY OF ARANSAS PASS, Appellee.

 

On appeal from the 343rd District Court

of San Patricio County, Texas.

 

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Benavides

Memorandum Opinion by Justice Benavides

Appellant, Marylyn Warren, appeals from the trial court’s order granting a combined

motion filed by appellee, the City of Aransas Pass (the “City”), that included a plea to the

jurisdiction, a motion for traditional summary judgment, and a motion for no-evidence

summary judgment. See TEX. R. CIV. P. 166a(c), (i). By numerous issues, which we will

address out of order for organizational purposes, Warren argues that (1) the Nueces
 The record does not indicate that Ronnie Poole was ever served. He neither filed an answer nor 1

appeared in the proceedings below. The judgment granting the City’s combined motion states that the “cause”

was dismissed with prejudice. Furthermore, W arren did not list Poole as a party in her appellate brief. Based

on the record before us, we conclude that Poole was never made a party to this case, and the judgment finally

disposes of all parties to the proceeding.

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County District Court erroneously transferred venue to San Patricio County; (2) the trial

court erred by denying Warren’s “motion to remove” the case to federal court; (3) the trial

court erred in granting the combined motion before discovery was completed; (4) the trial

court erred by refusing to make findings of fact and conclusions of law; (5) the trial court

erred by sustaining all of the City’s objections to Warren’s evidence without giving her an

opportunity to respond and without holding a hearing; and (6) the trial court erroneously

granted the City’s combined motion. We affirm.

I. Background

On August 3, 2005, Warren filed suit against the City and Ronnie Poole in Nueces 1

County District Court. Warren’s original petition claimed that she is the owner of two

shrimp boats, an unnamed boat and the “Miss Elizabeth Ann.” She claimed that both

boats were properly docked at a pier located in Nueces County in a body of water opposite

from Conn Brown Harbor. Warren conceded that the boats were located within the city

limits of Aransas Pass. She claimed that the City, without communicating with her first,

“directed that [the boats] be relocated from where they were properly and legally docked,

across that body of water, away from their legitimate docking.” Warren claimed that after

the boats were moved, she could not access the boats by land. Ultimately, the boats were

damaged by unusual weather, and they both sank. 

Warren asserted that the City Manager of Aransas Pass “gave the boats to a third

party, conditioned only on the requirement that he remove the boats from the waterway.”
 The City erroneously cited section 15.002 of the Texas Civil Practice and Remedies Code in support 2

of its mandatory venue argument. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002 (Vernon 2002). That

provision provides the general venue rule, not mandatory venue. See id. 

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The petition does not provide the identity of this alleged third party. According to the

petition, the third party removed the boats and then removed equipment and fixtures from

the boats. Once the third party was advised of the boats’ true owner and that one was a

“Coast Guard licensed boat,” the third party returned one boat to the waterway and sunk

it at approximately the same location where it had been raised. Warren alleged that this

boat remains sunk at the same location. The second boat was placed at an unidentified

location on land. 

Warren pleaded claims for conversion, negligence, tortious interference with her

“shrimping and fishing business,” interference with a “Coast Guard licensed boat,” and

obstruction of a navigable waterway, seeking damages under all theories of liability. She

also alleged gross negligence and requested punitive damages. 

On August 3, 2005, the City filed a motion to transfer venue to San Patricio County

and an answer subject thereto. The City objected to venue in Nueces County, alleging that

venue was mandatory in San Patricio County. The City’s answer specifically pleaded 2

sovereign immunity as an affirmative defense.

Warren apparently did not respond to the City’s motion to transfer, as no response

appears in the record. Likewise, the record does not contain an order granting the motion

to transfer venue. However, the next document that appears in the record after the City’s

motion is a docket control order issued by the 343rd District Court of San Patricio County.

All the proceedings that followed were conducted by the San Patricio County District Court.
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On June 9, 2006, Warren filed a “Motion to Remove Case to Federal District Court.”

In this motion, she argued that the case involves a boat registered with the United States

Coast Guard. She concluded that the City’s “mistreatment” of the boat was “injurious and

disrespectful to the U.S. Coast Guard regulation of vessels under their regulatory authority.

Therefore, this lawsuit readily should be subject to the jurisdiction of the Federal District

Court.” Furthermore, Warren argued that the City had “forum shopped” by transferring

venue to San Patricio County, and the federal district court could “resolve any doubt or

impropriety related to the improvident transfer of jurisdiction by defendants.” She

conceded that removal actions are normally sought by defendants in a case, but “based

on the above pleadings,” Warren asserted that “this abnormal removal action [was]

warranted.” The City did not respond to this motion, and the record does not contain a

ruling on the motion. 

On October 10, 2006, the City filed a combined motion that contained a plea to the

jurisdiction, a traditional motion for summary judgment, and a no-evidence motion for

summary judgment. See TEX. R. CIV. P. 166a(c), (i). The City argued through its plea to

the jurisdiction and its traditional motion for summary judgment that all Warren’s claims

were barred by sovereign immunity. The City also argued that Warren did not have

standing to raise a claim for obstruction of a waterway. Additionally, the City argued

through its traditional motion for summary judgment that there is no recognized cause of

action for “interference with a Coast Guard licensed boat.” The City then attacked

elements of each of Warren’s claims through its no-evidence motion for summary

judgment.

On November 2, 2006, Warren filed a response. First, Warren argued that the San
 This is the first pleading that reveals Poole’s connection to the case. 3

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Patricio County District Court erroneously assumed jurisdiction over the case because she

claimed that the boats were docked and then sunk in a body of water that was located in

Nueces County. Second, she argued that the City had failed to plead sovereign immunity.

Third, she argued that the no-evidence summary judgment was improper because

discovery was not complete. 

With regard to the merits of the City’s plea to the jurisdiction, Warren asserted that

the City was engaged in a proprietary, discretionary function when it moved the boats.

Specifically, she disputed that the waterway was located in Conn Brown Harbor, and she

argued that the waterway where the boats were located was a private waterway that City

officials were trying to purchase at the time the boats were moved. Warren conceded that

she had no knowledge of the type of motor-driven equipment used to move the boats.

However, she argued that “res ipsa loquitor requires that the only way two good size [sic]

shrimp boats could be moved that distance, would have to be by some motor vehicle or

motor driven equipment; plaintiff is not relying on the fact that both boats had engines . . . .”

Warren also asserted that there was a contract between the City Manager of

Aransas Pass and Ronnie Poole to remove the boats. Accordingly, and although Warren

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had not asserted a breach of contract claim, Warren argued that the City waived immunity

by contracting with Poole to remove the boats. Warren also asserted a theory of “joint

enterprise” liability, claiming that the City was responsible for Poole’s actions under this

theory. 

Warren argued that her claim for interference with a Coast Guard licensed boat was
 W arren attached Exhibit B to her appellate brief. 4

 W arren filed a supplemental motion to set aside the order on December 11, 2006, attaching 5

additional evidence.

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a “federal claim,” although she never identified the law that is the source of the claim. She

reasoned that the City did not have Eleventh Amendment immunity with respect to her

federal claim. Finally, Warren asserted that she is entitled to “declaratory relief,” which is

not subject to sovereign immunity, for the violation of her constitutional due process rights.

Notably, Warren had never pleaded a claim for declaratory relief. 

Warren submitted a “sworn statement” in support of her response. She stated that

the boats were moored at a location just south of Conn Brown Harbor, which she had

rented from an unidentified individual. The statement does not claim that the waterway

itself was not operated or maintained by the City. Apparently, Warren also attached two

maps to her response, designated as Exhibits B and C. Exhibit B does not appear in the

record. Exhibit C is a map of the area showing Conn Brown Harbor and the line between 4

San Patricio County and Nueces County. There is nothing on the map to indicate where

the boats were located at any given point in time. 

On November 14, 2006, the City objected to all of Warren’s “evidence” on various

grounds, and the trial court granted the objections on November 22, 2006. Due to the trial

court’s rulings on these objections, none of the evidence Warren submitted was

considered. Thus, on November 22, 2006, the trial court granted the City’s combined

motion without stating its reasoning. 

On December 8, 2006, Warren filed a motion to set aside the summary judgment

and a response to the City’s objections to her summary judgment evidence. Warren

5
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argued that the City had not fully responded to her discovery and that she had filed a

motion to compel discovery. Warren also objected that the trial court failed to give a

reason for its ruling. Furthermore, Warren attempted to submit additional evidence to

support her argument that the City did not own the land where her boats were originally

docked and could not have been exercising a governmental function on this “private

property.”

Warren then filed a notice of appeal. After her notice of appeal was filed on January

25, 2007, she filed a request for findings of fact and conclusions of law on February 25,

2007 and an additional request for findings of fact and conclusions of law on March 2,

2007. Warren requested that the trial court clerk prepare the record for appeal, but she

did not request that the record contain any specific orders. This appeal ensued. 

II. Venue

By her first issue, Warren argues that the trial court erroneously determined that the

two boats were not located in Nueces County, which she asserts caused the trial court to

erroneously transfer venue to San Patricio County. Warren’s argument consists of a little

over a single page, and with a single sentence of legal argument, she cites the Texas Tort

Claims Act, which requires suit to be filed in the county where the cause of action arose.

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.102(a) (Vernon 2005) (“A suit under this

chapter shall be brought in state court in the county in which the cause of action or a part

of the cause of action arises.”). Warren does not, however, explain why the trial court

erred by granting the motion to transfer, with citations to appropriate authority or to the

record. See TEX. R. APP. P. 38.1(i). Under these circumstances, nothing is presented for
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our review. McShane v. Bay Area Healthcare Group, Ltd., 174 S.W.3d 908, 913 (Tex.

App.–Corpus Christi 2005) (holding mere citation to law without explanation of how it

requires reversal is insufficient to satisfy rule 38.1), rev’d on other grounds, 239 S.W.3d

231 (Tex. 2007). Warren’s first issue is overruled.

III. Warren’s “Motion to Remove” the Case to Federal Court

By her sixth issue, Warren argues that the trial court erred in “refusing appellant[‘]s

efforts to remove the case to federal court, after not being able to obtain the appropriate

state court for shrimp boats located in Nueces County, under alleged forum-shopping by

Aransas Pass.” As with her first issue, Warren does not provide any citations to authority

or to the record in support of this argument. See TEX. R. APP. P. 38.1(i); McShane, 174

S.W.3d at 913. Additionally, the record does not indicate that Warren obtained an adverse

ruling on her motion to remove the case to federal court. See TEX. R. APP. P. 33.1(a)(2)

(“As a prerequisite to presenting a complaint for appellate review, the record must show

that: . . . the trial court: (A) ruled on the request, objection, or motion, either expressly or

implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining

party objected to the refusal.”).

More importantly, however, we know of no authority that would allow a state court

to grant such a motion. Rather, to effect a removal of a case from state to federal court,

a defendant or defendants must file a notice of removal in the appropriate federal court.

See 28 U.S.C. §§ 1441(a), 1446(a). Thereafter, a copy of the notice of removal must be

filed in state court, which effects the removal. Id. § 1446(d); see HBA East, Ltd. v. JEA

Boxing Co., 796 S.W.2d 534, 537-38 (Tex. App.–Houston [1st Dist.] 1990, writ denied).
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Accordingly, we overrule Warren’s sixth issue.

IV. Incomplete Discovery

By her fifth issue, Warren argues that the trial court erred in granting the combined

motion despite “being alerted to the discovery by the parties not being completed,” which

she asserts prevented her from properly responding to the combined motion. Again,

Warren has failed to include any citations to the record for her arguments and has not cited

any authority to support her issue, except for a vague reference to violations of the Texas

Lawyer’s Creed. See TEX. R.APP.P. 38.1(i); McShane, 174 S.W.3d at 913. Warren’s fifth

issue is overruled.

V. Findings of Fact and Conclusions of Law 

By her seventh issue, Warren argues that the trial court erred by refusing to enter

findings of fact and conclusions of law and by failing to respond to her additional request

for findings of fact and conclusions of law. Warren argues that she is unable to determine

the standard the court used in granting the City’s combined motion. As with all the other

issues addressed thus far, there is not a single citation to the record or to any relevant

authority in support of her arguments. See TEX. R. APP. P. 38.1(i); McShane, 174 S.W.3d

at 913. In fact, the trial court was not required to file findings of fact and conclusions of law

with respect to the plea to the jurisdiction or to the summary judgment because these

motions could only be granted if no fact issue existed. See Tex. Dept. of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004) (“If the evidence creates a fact question

regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant
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evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial

court rules on the plea to the jurisdiction as a matter of law.”); IKB Indus. (Nigeria) Ltd. v.

Pro-Line Corp., 938 S.W.2d 440, 441-42 (Tex. 1997) (noting findings of fact have no place

in summary judgment proceeding because summary judgment is granted when no fact

issues exist, and the applicable law is set out in the motion and response); Swoboda v.

Swoboda, 17 S.W.3d 276, 281 (Tex. App.–Corpus Christi 2000, no pet.) (same). Warren’s

seventh issue is overruled. 

VI. City’s Objections to Warren’s Evidence

By her fourth issue, Warren argues that the trial court erred by sustaining all of the

City’s objections to her evidence without giving her an opportunity to respond and without

scheduling a hearing on the objections. The effect of the trial court’s ruling was to exclude

all of Warren’s evidence in opposition to the City’s combined motion. 

Warren’s argument consists of a single page with a single reference to Texas Rules

of Evidence 803 and 804 and a conclusory reference to unspecified provisions in the

Texas Lawyer’s Creed. She does not address the numerous objections lodged by the City

against her evidence or explain why each of the objections lacks merit. There are no

citations to the record, and there is no analysis of any relevant authority. Yet again, we are

unable to address Warren’s complaint because it is inadequately briefed. See TEX.R.APP.

P. 38.1(i); McShane, 174 S.W.3d at 913. 

For example, in response to the City’s combined motion, Warren submitted her own

sworn statement and two maps, labeled Exhibits B and C. The City objected to Warren’s

statement on the grounds that it was not a proper affidavit because it did not contain a
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jurat. The trial court sustained this objection, and Warren does not address it anywhere

in her appellate brief. The same is true with respect to Exhibit C. The City objected that

this map was unauthenticated hearsay, and the trial court sustained this objection. Warren

does not address this contention on appeal. 

Although Warren complains that the objection to Exhibit B should not have been

sustained because the map “meets the exceptions to the nonadmission of hearsay, under

Rules 803/804,” Exhibit B does not appear in the clerk’s record. Warren complains of this

defect, but she has taken no steps to ensure that the map was included in the record other

than to merely attaching the map to her brief. Under these circumstances, we cannot

consider Exhibit B. Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549

(Tex. 2004) (“Although Enterprise bears the burden to prove its summary judgment as a

matter of law, on appeal Barrios bears the burden to bring forward the record of the

summary judgment evidence to provide appellate courts with a basis to review his claim

of harmful error.”). 

Warren further argues that the trial court erred by failing to hold a hearing on the

objections. However, the rules of civil procedure do not require an oral hearing on

objections to summary judgment evidence or to evidence submitted in opposition to a plea

to the jurisdiction. See TEX. R. CIV. P. 166a; Miranda, 133 S.W.3d at 228 (holding

procedure for plea to jurisdiction is similar to summary judgment); Martin v. Martin, Martin

& Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (holding that trial court has authority

to dispense with oral hearing for summary judgment motion). Furthermore, the objections

were filed on November 14, 2006, and the trial court granted the objections over a week

later on November 22, 2006. It appears that Warren had ample time to respond to the
 W arren’s second issue argues that the trial court erred by ignoring her response to the plea to the 6

jurisdiction and her motion to set aside the summary judgment. W ithin this issue, Warren does not point to

anything in the record that demonstrates that the trial court actually ignored her filings. Rather, she reasserts

all the arguments she made in the trial court within her response to the combined motion. Apparently, W arren

believes that the trial court must have ignored her response and her motion to set aside the order because

it ruled in the City’s favor. Warren’s third issue argues that the trial court erred in granting the combined

motion “apparently on the basis of Aransas Pass not being liable for the misconduct of the city manager,

personnel and third parties on the basis of sovereign immunity, and provisions of the Texas Tort Claims Act.”

W arren’s eighth issue argues that the trial court erred by “refusing to recognize that Aransas Pass Personnel’s

Misconduct was an exception to their theory of jurisdiction and sovereign immunity.”

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City’s objections, but failed to do so. Warren’s fourth issue is overruled.

VII. Propriety of Summary Judgment

By her second, third, and eighth issues, Warren argues, for various reasons, that 6

the trial court erred by granting the combined motion. However, given that we have

overruled Warren’s fourth issue with respect to the trial court’s order sustaining all the

City’s objections to all of the evidence she produced in response to the motion for noevidence summary judgment, we are required to affirm the trial court’s order.

The combined motion included a motion for no-evidence summary judgment under

Texas Rule of Civil Procedure 166a(i) that attacked all of Warren’s causes of action. A noevidence motion places the burden on the non-movant to produce evidence raising a

genuine issue of fact as to all the elements challenged by the motion. See TEX. R. CIV. P.

166a(i). Here, the effect of our ruling on Warren’s fourth issue, holding that Warren waived

her challenge to the trial court’s order sustaining the City’s objections to all of her summary

judgment evidence, is that we may not consider the evidence. See Inglish v. Prudential

Ins. Co. of Am., 928 S.W.2d 702, 706 (Tex. App.–Houston [1st Dist.] 1996, writ denied).

Thus, Warren has no evidence in the record in opposition to the City’s no-evidence motion

for summary judgment, and we must affirm. Welch v. Coca-Cola Enters., Inc., 36 S.W.3d
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532, 537 (Tex. App.–Tyler 2000, no pet.) (“In the case of a no evidence summary

judgment, there can be a judgment by default because, if the non-movant does not

respond, judgment can be rendered against the non-movant, summarily disposing of the

challenged cause of action or defense.”); see also Love v. Wal-Mart Stores, Inc., No.

11-05-00121-CV, 2006 WL 3038600, at *2 (Tex. App.–Eastland Oct. 26, 2006, no pet.)

(mem. op.) (holding that court was required to affirm no-evidence summary judgment

where appellant did not challenge trial court’s order striking all of appellant’s summary

judgment evidence). Warren’s second, third, and eighth issues are overruled.

VIII. Conclusion

Having overruled all of Warren’s issues on appeal, we affirm the trial court’s

judgment.

________________________________

GINA M. BENAVIDES,

Justice

Memorandum Opinion delivered and

filed this the 13th day of November, 2008.