### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 6 -00 751 -CV

Tae Hol le nbe c k , A ppe lla nt

v. Mer cedes- Benz USA, LLC , Appellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 201S T JUDICIAL DISTRICT NO. D-1- GN-04- 0034 45 , HO NORAB LE DARLENE BY RNE , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
Ta e Ho lle nb e c k a

pp e a ls f ro m a summa ry jud g me nt gra

nte d in fa vo r o f M e rc e de sBe nz USA, L L C on his claims of da mag es resulting from his pur chase of an alleg edly defe ctive ca

r. On appe al, he c omplains of Merc edes- Be nz’s actions without ex p l ai n i n g how these a ctions show err ors by

the district court that a

n appellate court c an re medy , except perha ps to urg e that the district court should not have gr anted summary judgme nt in the fac e of suc h actions. We aff irm the jud g me nt. Hollenbec k boug ht a Merc edes automobile in T exas through the Europe an De livery Packag e, re quiring him to pick up the car i n Europe. He alleg ed in his orig inal petition that the car ha d p ro ble ms whil e sti ll i n E ur op e , in c lud ing e ng ine sta lli ng and fa ili ng to re sta rt , the c onve rt ibl e top a nd hood failingto close, ele ctronics not wor king, a nd seat c ushions perfor ating and lettingwiresMerc edes a lso sought summary judgme nt on gr ounds that the dec eptive tra de pra ct i ces 1 claim was ba

rre d by limit ations. The district cour t denied that par

t of the motion. 2 protrude. H e complaine d that Merc edes f ailed to re pair the c ar. H e cla imed damag es fr om dece ptive tr a de pr a c tic e s, br e a c h o f e xpre ss a nd imp lie d w arr anti e s, and

br e a c h o f c on tr a c t. Merc edes sought summary judgme nt, contendingthat it had conclusively neg ated at least one e lement of Hollenbe ck’s de ceptive tr ade pr actice s, express and implied warran t y , and br e a c h o f c on tr a c t c la ims
. Merc edes a lso contended that Hollenbeck had no evidenc e supporting 1 at least one element of eac h of his claims. Merc edes a sserts that, af ter the he aringwas postponed at Hollenbec k’s reque st a

nd with Me rce des’s ag ree ment, Hollenbec k filed a response the day befor e the hea ringwas he ld. Merce des objec ted to that filing a s u n timely
. SeeTex. R. C iv. P. 166a(c). Afte r s u s taining Me rce des’s objec tion to Hollenbeck’s r esponse, the district c ourt g rante d Me rc e de s’ s mo tio n f

or summa ry jud g me nt. On appe al, Holl enbec k complains that (1) Me rce des-B enz technicians unde rre ported
war ranty work to avoid having the car classified as a lemon, (2) the c ar ha d serious def ects, including mis sin g sa fe ty

fe atur e s, (3 ) h e wa s so ld a dif fe re nt c ar t

ha n p ro mis e d, (4 ) h e wa s a sse sse d unu su a lly high int e re st rate s and wa s a sk e d fo r a dd iti on a l amou nts up on his a tte mpt to take po sse ssi on of his
car , (5) he was surpr ised by differ ent t erms at delivery in Europe than he was promised in the United State s, and

(6 ) Mercede s ag e nts and c ouns e l mi sle d th e dis tr ic t c ourt a bo ut t he ir a g re e me nts reg ardingtime compromises, resc heduling , and postponements. He a sserts that his filings with the district court show numerous defec ts that “ser iously hamper ed the safe a nd pleasura

ble oper ation” of his c ar a nd that Me rc e de s d e c e ive d h im.3 Ho lle nb e c k d oe s no t pr e se nt any g ro un ds fo r us to r e vie w the dis tr ic t c ourt ’s a c tio ns , nor does the r ecor d demonstrate that the summary judgme nt w as err oneous. Althoug h Hollenbec k is repre senting himself, he is held to the same sta ndard a s attorney s. Mansfield State Bank v. Cohn , 57 3 S. W.2 d 1 81 , 1 84 -8 5 ( Te x. 19 78 ). On a pp e a l, a n a pp e lla nt mus t sh owe rr or s b y

the dis tr ic t c ourt , prese rved f

or re view, that mer it rever sal of the judg ment. SeeTex. R. App. P . 33.1, 38.1, 44.1. Hollenbec k’s appe llate brief reite ra t es an d , in some instances, diver g es fr om assertions he made at the district cour

t. He does not pre sent any err ors by the di strict court that are subjec t to review. He does not suppor

t his complaints with citations to authority or the re cord a s require d by rule. See Tex. R. App. P . 38.1(h).

Even if we broadly

construe his complaints, he does not show err or in the g ranting of the no e vidence motion for summary judgme nt. Merce des filed a motion for summary judgme nt that was in par

t a no evidenc e motion, spe ci fy i n g an es sential eleme nt of ea ch cla im on which Hollenbec k did not produce evidenc e. When a defe ndant files a no e vidence motion for summary judgme nt, “[t] he cour

t must gra

nt the motion unless the respondent produc es summary judgme nt evi dence raisinga g enuine issue of materia l fac t.” Tex. R. C iv. P. 166a(i). The r ules requir e that the nonmovant file a

ny response to a motion for summary j u d gment seven da y s in advanc e of the hear ing, absent lea

ve of c ourt. Tex. R. Civ. P. 166a(c ). The recor d does not contain a ny timely filed evidenc e from Hollenbec k to de monstrate the exis tence of a fac t issue or counter t h e n o evidenc e alleg ations of Merc edes. The judgme nt rec ites that the di strict court sust ained Me rce des’s Obje ction to the Timeliness and L ack of Competent Evidence Attache d to Plaintiff’ s Response to Defe ndant Merc edes- Be nz USA, L L C’s Motion for Summary J udg ment. Hollenbec k does not cha lleng e the4

sustaining of

that objection, nor does the rec ord indicate that any such cha lleng e would have been
succe ssful. Consequently , Hollenbec k did not timely place any evidenc e in the re cord a

nd does not cite to any

evidenc e in the re cord suppor ting the e lements of his claims challeng ed by Merc edes’ s no evidenc e motion for summary judgme nt. By rule, the district court had no option but to g rant the no evidenc e motion for summary judgme nt. SeeTex. R. C iv. P. 166a(i). Be cause Hollenbec k does not presen t any issues on appea l that provide a ba sis for
re ve rs a l, w e a ff

ir m th e jud g me nt.

G. Alan Waldrop, Just ice Be fore Chief J ustice L aw, Justi ces Pembe rton and Waldrop Affir med Filed: Apr il 16, 2008