## In the Court of Appeals Second Appellate Distr ict of Texas

at F ort W orth

___________________________ No. 02

- 19

- 00391

- CV

___________________________

On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352

- 304203

- 18
Before Sudderth, C.J.; K err and Womack, JJ. Memorandum Opinio n by Justice Wo mack 

### A LVIN 

### W ESTLEY 

### , Appellant

V


### . J. S PENCER 

### N ILSSON AND 

### N ILSSON 

### L EGAL 

### G ROUP 

### , PLLC , Appellees2 MEMORANDUM OPINI ON
I. I NTRODUCTION Appellant Alvin Westley sued Appellees J. Spencer Nil sson and Nilsson Legal Group, P LLC (collectively, Nilsson) over their representation of him in his divorce
pr oceeding. The trial court grant ed a no
- evidence summary judgment for N ils son, and Wes tley appeals from that judgment . Because We stley did not respond to the summary judgment motion , the trial court did not err by granting judgment for Ni lsson , and we the refore affirm

. II. B ACKGROUND In Wes t ley ’ s November 2018 petition , he alleg ed that Nilsson had failed to prevent Westley ’ s then

- wife from wasting community assets and from committing fraud on the community estate. Based on these allegations, he asserted claims for negligence, n egl i gent mis represen tati o n, and breach of fiduciary duty. A few months after Westley filed his petition , his attorney filed an unopposed motion to withdraw. The trial court gr anted the motion , and Westley, who is incarcerated, rep r esented himsel f p ro se for the rest of the t rial court proceedings. In September 2019, Nils son moved for a no
- evidence summary judgment , asserting that there was no evidence to support the elements of each of Westley ’ s claims

. Westley did not file a re s po nse to the motion , a motion f or l eave to file an untimely response , or a motion for continuance of the summary judgment hearing

.3

On Oct o ber 2, 2019, the trial court notified the parties that the motion would be heard the next week on October 9; the tri a l court h ad previously s chedule d a hearing for that date for various motions filed by Westley

. Westley appeared at the hear ing by telephone

. Westley did not object that he had not received twenty

- one days ’ notice of the hearing , and he acknowl edged that he had not resp onded to the summary judgment motion, stating that he “ did not know [that he] had to f ile anything on that o ne . ” See Te x. R. Civ. P. 166a ( i )

. At the conclusion of the hearing, the trial court signed an order g ran ting the motion and dism is s ing We stley ’ s claim s . Westley then filed a motion to set aside the s umma ry judgment, arguing that he had not received twenty

- one days ’ notice of the summary judgment hearing

. At the hearing on the m o tion to set aside , Nilss on argued that Westley w as re q uired to object

to the l ack of notice at the summary judgment hea ri ng and had failed to do so

. Aft er the trial court asked Nilsson ’ s attorney for case law to support that argument, Nils s on ’ s attorney responded , “ I d o n ’ t have any available, but if th e [c] o urt would permit a 10

- minute recess . . . pe rhap s I could come back with that case law. ” The trial court granted th at requ est over Westley ’ s objecti on , and, after t he recess, Nilsson ’ s attorn e y provided the court with two cases: Nguyen v. Short, How, Fr e ls & Heitz, P.C. , 108 S.W.3d 558, 561 (Tex. Ap p.

— Dallas 2003, pet. denied) , and Rios v. Tex. Bank , 948 S.W.2d 30, 33 (Tex. App.

— Houston [14th Dist.] 1997, no writ)

. The trial court then denied Westley ’ s motion. We s tley now appeals.4 III. D ISCU SSION A. Standard of Review After an adeq uate tim e for discov ery, the party without the burden of proof may, without presentin g evidence, move for summary judg ment on the gr o und that no evidence support s an essential element of the nonmovant ’ s claim or de fe nse. T ex. R. Civ. P. 166a(i). The m oti on must specifically state the elements for which no evidence exists. Id. ; Timpte In dus., Inc. v. Gish , 286 S.W.3d 30 6, 310 (Tex. 2 0 09). The trial court must g rant the motion unless the nonmovant produces summary judgmen t evidence that raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997
cmt.; Hamilton v. Wilson , 24 9 S.W.3d 425, 426 (Tex. 2008). But i f the nonm o vant brings forward more tha n a scintilla of probative evidence that raises a gen uine iss u e of material fact, then a no

- evidence summary judgment is not proper. Smith v. O’Donnell , 288 S.W.3d 417, 424 (Tex. 2009 ); King Ranch, Inc. v. Chapman , 118 S.W.3d
7 4 2, 751 (Tex. 2003)

. B. Westl ey ’ s Arguments Westley ’ s brief does n ot contain a s t atement o f i ssues, see Tex. R. App. P. 38.1(f), but he challenges the summary judgment in four general catego ries of arguments . We therefore construe his brief to raise a sin g le issue c hallenging the

sum mary judgment and to rais e mult iple arguments in sup port of t hat i ssue.5

1. Nilsson wa s ent itled to judgment after Westley failed to respon d to the no - evidence motion
. Westley argues that summary judgme nt was improper becaus e he sent trial exhibits to t he trial court and because he sent r esponses to Nil sson ’ s re quests fo r disclosu re , although he acknowledges that Nilsson did not receive the d iscovery

res ponses that he had mailed because they were returned by the post o ffice

. B ut i f
West ley wishe d to assert that evidence before the trial court raised a f ac t iss ue suff icient to defeat the no
- evidenc e motion , he had to timely file a response to the

mo tion raisi ng th at issue. See Imkie v. Methodist Hosp. , 326 S. W .3d 339, 343 (Tex. App.

— Hous ton [1st Dist.] 2010, no pet.) (op. on reh ’ g) ; Landers v. State Farm Lloyd s , 257 S.W.3 d 740, 746 (Tex. App.

— Houston [1st Dist.] 2008, no pet.)

. Westley does

not contend that he fi led a response that pointed out to the trial co u rt the evidence that he was relying on to create a fact issue , and t he trial court was not requi red to

se arch the record on i ts own for evidence supporting Westley ’ s claims. See Shelton v. Sargent , 144 S.W.3d 1 13, 120 (Tex. App.

— Fort Worth 2004, pet. den i ed)

. S ome evidence

—

Westl ey ’ s divorce decree

— was provided to the trial court , but that evidence was pr ov

ided by Nilsson and was no t provided until the hearing on the

no
- evidence motion. But even were the trial court to consider that evidence, but see T e x. R. Civ. P. 166a (c) , (i) , Westley did not explain to the trial court how th at6

document raised a fact i ss ue on the challenged elements of hi s claims

. 1 See Imkie , 326 S.W.3d at 343 ; Shelton , 144 S.W.3d at 120

. Even on ap peal, Westley does not argue how that document support s his c laims. See Tex. R. App. P. 38.1 (i)

. We overrule thi s part of Westley ’ s issu e. 2. Westley ’ s complaint about the tim ing of the hearing does not require reversal. Westl ey also argues that the judgment must be reversed becau se h e did not receive twenty

- one days ’ notice of the hearing on the summary judgment motion

. Westley , howeve r, did not ti mely rais e this complaint. Rule 166a (c) requires that both a summary judgment motion and notice of the hearing on the mot

i on be served at least twenty

- one days before t he hearing date. Tex. R. Civ . P. 166a (c)

. But l ack of sufficient notice o f the hearing i s a t y pe of defect that may be waived. Viesca v. Andrews , No. 01

- 13

- 00659

- CV, 2014 WL 42 60355, at *6 (Tex. App.

— Housto n [1 st Dist.] Aug. 28, 2014, no pet.) (mem. op.). And any
comp laint about i nsufficient notice of the summary jud gment h ea ring is waived w hen the nonmovant has notice of the hearing date before the hearing occurs and the

1 Nilss on argued at the hearing that , under the decree, Westley was awarde d any assets that had not bee n disclosed by his wif e . Nilsson also noted that the decree st ated that Westley h ad read the d ecree and had voluntarily signed it , that it was a jus t and right division of the marital estate, and that he had not si gn ed it under coercion or duress. Although parts of th e decree were read at the hearing, the decree is not in the record. As no ted, We stley d oes not explain ho w this decree , or any e vidence h e sent to the trial court as trial exhibits, raise s a fa ct issue about whether his wife def raud ed the community est ate or wa s ted community assets and whether Nilsson f ailed to protec t him from his wi fe ’ s actions or made misr epresentations to him

.7

non movant fail s to co mplain a t or b e fore the hearing

. Caudle v. Oak Forest Apartments , No. 02

- 14

- 00308

- CV, 2015 WL 9244874, at *4 (Tex. App.

— Fort W orth D e c. 17, 2015, pet. deni ed) (me m . op.)

. W e stley did not raise any complaint about insufficient notice until after the trial

court had gr a nted summary judgment. Although the notice th at Westley received was inad equate under th e rules, Westley ha d so me noti c e , and he theref ore had the ability to bring the matter to the trial court ’ s attention and to preserve his complaint

. He did

n ot do so. Accordingly, Wes tley wa ived this complaint. See id. ; Rock well v. W ells Fargo Bank, N.A. , No. 02

- 12

- 00100

- CV, 2012 WL 4 936619, at *2 (Tex . App.

— Fort Worth Oct. 18, 201 2, no pet .) (mem. op.). W e overrule this part of Westley ’ s issue. 3
. The t rial court ’ s treatment of W es t ley does not merit reversal
. Westley ma kes several a rgu ments abo ut what he perceive s to b e unfair ne ss in the trial cou rt ’ s treatment of him

. He contends tha t the tria l court held him to a higher legal standard than Nilsson , a nd he complains that the tr ial co urt granted a

recess at the hearing on the mot ion to set aside so that Nilsson could pr ovide t he trial court with c ase law but did not give him (We stley) leeway on h is failure to respon d to Nilsson ’ s summary judgment mo tion. But th e act s of granting summary j udgment and allow ing a short recess at a h earing do not show unfair treatment by th e trial

c ourt, mu ch less unfair treat m ent that r e sulted in an erroneous judgment. A trial court has the discretion to grant a reces s , see Dow Ch e m. Co. v. Francis , 46 S.W.3 d 237,
240

– 41 (Tex. 2001) (stating that trial courts have great discretion over the conduc t of8

a trial ); Cont ’ l Dredging, Inc. v. De

- Kaizered, Inc. , 1 20 S.W.3d 380, 398 (Tex. App.

— Texarkana 2003, pet. denied) ( “ The granting of a recess is generally conside red to be within the sound discretion of the trial court
. ”) , but the trial court must gran t a no

evidence summary judgment when the motion meets the requirements of R ule 166a and the nonmo vant has fi le d no respons e. See Tex. R. Civ. P. 166a(i) ( “ The court must grant the motion unless the respondent produces su mmary jud gment evidence raising

a genu ine issue of material fact

. ” (emphasis added)) ; Eitel v. Horobec , No. 02

- 12

- 00500

- CV, 2014 WL 584780 , at *3 (Tex. App.

— Fort Worth Feb. 13, 2014, no pet.) (mem.
op . ) (noting t hat failure to produce summary judgment evid e nce on c hallenged elements in res pons e to no
- evidence motion for summary judgment requires trial court to grant no
- evidence motion )

. Nilsso n ’ s m otion challenged s pecific , essential elements of Westley ’ s claims for which he would have had the burden of pr o of a t

tr ial. 2 See Tex. R. Civ. P . 166 a( i) (setting out requirem ents for no

- evidence motion ) ;

2 As to We s tley ’ s legal

- malpractice claim, the no
- evidence motion asserted that there was no e vidence of breach of duty, caus e i n fac t, proximate cause, or damages and that West ley would have the burden of p ro of on th ose elements at t rial

. Se e Rogers v. Zan etti , 518 S.W.3d 394, 400 (Tex. 2017) ( “ To prove a legal

- malpractice claim, the client must establish that [ ] (1) the lawyer owed a duty of care to the client; (2) the lawyer breached that d uty; and (3) the lawyer ’ s breach proximat ely cause d damage to the client. ” ). Regarding Westley ’ s negligent

- misrepresentation claim, the no

- ev idence motion asserted that there was no evidence that Nilsson supplied false information , that Ni lsson had failed to exercise rea sonable care in gathering and diss eminating t he allegedly false information, or that Westley had suffered damages due to justifiable r eliance. See Madd

ox v. Vantage Energy, LLC , 361 S.W.3d 752, 760 n.9 (Tex. App.

— Fort Worth 2012, pet. deni ed) ( setting out the elements of a neglig e nt

misrepre sentation claim, including that the plaintiff justifi ably relied on the information sup plied by the defendant in the course of the defendant ’s profession and9

Timpte Indus., Inc. 286 S.W.3 d at 310 (noti ng that a no

- evidence m otion must be specific in challenging the evide n tiary support fo r a claim ’ s el ement)

. And Westley does not ar gue that by the tri al court ’ s treatment of him, h e was somehow preve nted
fr om filing a respons e to Nilsso n ’ s summary judgment motion. See Tex. R. App.
P. 38.1. Westley cites to cases st ating that a pro se litigant i s aff orded e xtra leeway in compl ying w

ith procedural rule s for litigation, but the case s he provi des are all fed eral cases governing pro ceeding s i n federal court. S e e , e.g. , Haines v. Kerner

, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972) ; Enro n Oi l Corp. v . Diakuhara , 10 F.3d 90, 96 (2d Cir. 1993)

. I n Texas, a l though we lib era lly construe parties ’ briefs , we hold p ro se l itigants

t o t he same st andard as attorneys. Ellis v. Barineau , No. 02

- 19

- 00252

- CV, 2020 WL 2608410, at *3 & n.1 (Tex. App.

— Fort Worth Ma y 21, 2020, no pet.) (me m. op.). And here, t he summary j udgment did not result from the trial court ’ s hold ing Westley to a highe r sta ndard than Nilsson ’ s attorney ; the judg ment was the necessary result of Westley ’ s failure to respond to t he n o
- ev idence mo tion.

that the defendant failed t o exercise reaso nable care or comp etence in obtaining or c o mmunicati n g the information )

. As for Westley ’ s breach

- of

- fiduciary

- duty claim, Nilsson alleged tha t there was no evidence of th eir breach of fi duciary duty to Westley, damages, or cau sation. See Fi rst Unit ed Pentecostal Church of Beaumont v. Par ker , 514 S. W.3d 214, 220

– 2 1 (Tex. 2017) (stating that the elements of a breach

- of

fiduciary

- duty claim seeking recovery of act ual damages are the e xistence of a fi d uciary duty, breach of the duty, causation , and dama ges).10

4. Westley ’ s disc overy - related complaints do no t show r eversible error.
Wes tley also complains about v arious matters re late d to discov e ry , but none of his complaints show reversible error

. First, Westley complains about Nilsson ’ s f ai lure to init

ially provide addresses for all of Nilsson ’ s witnesses an d statem ents about each witn ess ’ s con nection to the

case. 3 We s t

ley also a sserts that he did not receive his entire client file from Nil sson . But assuming tha t these allegations are factually ac cura te, Westley did not argue to the trial court

— and does not argue on appeal

— that not havi ng more wit ness i nformation and his complet e client file prevented him from filing a summary judgment response . See Tex. R. A pp. P. 38.1. Westley makes other argu ment s about having sent discovery re sponse s to Nilsson that w ere returned to him due to pos tal restric tions. But, aga in, Westley does not argue that any of these mailings to Nilsson contained a summary j udgment
response or that he was, thr ough no fault of his own, prevented from filing a re sponse

3 Westley a cknowled ges that Nilsson filed su pp lemental discovery responses disclosing the addresses of all witnesses except for their e xp ert witness

. As for the ex pert witne ss, that witness is a former trial judge for whom Nilsson had only a home add ress, which Nilsson was reluctant to dis close for p rivacy reasons. At the hearing, which began by addressing Westley ’ s motion s , the trial court gave Nilsson fourteen da ys to ob tain an ad dress for the witness for correspondence with Westley for p ur poses of this case . Westley arg ues on appeal th at Nilsso n did not f ile a motion for a protective order regarding the address, but this complaint, like his ot her discovery

re lat ed compl aints , d oe s n ot show reversible error ; he does not explain how the la ck of an a ddress prevented him fro m filing a respo nse to th e no
- evidence motion.11

with the trial cou rt. 4 Westley acknowledge s that he f iled no res ponse to t he no

evidence m otion

. Consequently, w e overrule th e remaining part of his sole is sue . IV
. C ONCLUSIO N Having overrule d W es tley ’ s sole issue , we affirm the trial court ’ s ju dgment.
/s/ Dana Womack Dana Womack Ju stice Delivered : July 22, 2 021

4 Westley ’ s focus on the discovery response s may be a refle ction of the arguments at the summary ju dgment hearing. T he summary judgment part of the h earing did not begin with ar gument a bout whether the no

- evid ence motion comp lied w ith R ule 166a and whether Westl ey had filed a response to the motion

. Instead , the trial court heard Nilsson ’ s a rgument s a bout why Westley ’ s divorce decree defeated Westley ’ s claims

. T he trial c ou rt t hen asked Westley whether he had provide d Nilsson
w ith ev idence to support his claim s , and the parties discussed Westley ’ s attempts at complying with N ilsson ’ s discovery requests
. Only after that discussion did t he tr ial court ask Westley i f he had file d a response to the no

- evidence mo tion.