Randolph A. Lopez, D/B/A Brown Hand Center and D/B/A Brown Medical Center v. Cox Texas Newspapers, L.P., D/B/A Austin American-Statesman

ACCEPTED

03-14-00331-CV

3937092

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/28/2015 3:52:26 PM

JEFFREY D. KYLE

CLERK

No. 03-14-00331-CV

FILED IN

3rd COURT OF APPEALS

IN THE COURT OF APPEALS AUSTIN, TEXAS

FOR THE THIRD DISTRICT OF TEXAS 1/29/2015 11:28:26 AM

JEFFREY D. KYLE

Clerk

Randolph A. Lopez, appellant

v.

Cox Texas Newspapers, L.P., appellee

On Appeal from County Court at Law No. 2

Travis County, Texas

Tr. Ct. No. C-1-CV-13-002354

APPELLEE’S BRIEF

Timothy A. Hootman, SBN 09965450

2402 Pease St

Houston, TX 77003

713.247.9548

713.583.9523 (f)

Email: thootman2000@yahoo.com

Bill Malone, Jr., SBN 12877500

8650 Spicewood Springs, No 145-598

Austin, TX 78759

512.346.9600

ATTORNEYS FOR APPELLEE, COX TEXAS

NEWSPAPERS, L.P.

ORAL ARGUMENT REQUESTED

(only if granted to appellant)

1

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................... 2

INDEX OF AUTHORITIES .............................................................................. 3

STATEMENT OF FACTS ................................................................................. 5

SUMMARY OF ARGUMENT ......................................................................... 10

ARGUMENT AND AUTHORITIES .................................................................. 11

1. Introduction .................................................................................... 11

2. Craddock is not the standard of review ...................................12

3. Conscious indifference .................................................................14

4. Meritorious defense—“did not sign contract”....................... 18

5. Meritorious defense—“attorney’s fees” .................................. 20

6. “No harm or injury” ..................................................................... 22

PRAYER ..................................................................................................... 24

CERTIFICATE OF WORD COUNT ................................................................. 25

CERTIFICATE OF SERVICE ......................................................................... 25

2

INDEX OF AUTHORITIES

Texas cases:

Carlin v. 3V, Inc., 928 S.W.2d 291 (Tex. App.—Houston [14th Dist.] 1996, no

pet.)…………………………………………………………………………………………………. 14

Carpenter v. Cimarron Hydorcarbons Corp., 98 S.W.3d 682 (Tex. 2002)……….12

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)……………………………………. 19

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124

(1939)………………………………………………………………………………………. passim

Farmer v. Ben E. Keith Co., 919 S.W.2d 171 (Tex. App.—Fort Worth 1996, no

writ)………………………………………………………………………………………………… 16

Gumble v. Grand Homes 2000, L.P., 334 S.W.3d 1 (Tex. App.—Dallas 2007, no

pet.)………………………………………………………………………………………………… 21

Holley v. Holley, 864 S.W.2d 703 (Tex. App.—Houston [1st Dist.] 1993, writ

denied)…………………………………………………………………………………………….. 14

Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011)………………………………………………………….. 13

In re L.M.I., 119 S.W.3d 707 (Tex. 2003)……………………………………………………….21

Lasikplus v. Mattioli, 418 S.W.3d 210 (Tex. App.—Houston [14th Dist.] 2013, no

pet.)…………………………………………………………………………………………………. 14

Lewis v. Nolan, 105 S.W.3d 185 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied)……………………………………………………………………………………………. 21

Little v. Needham, 236 S.W.3d 328 (Tex. App.—Houston [1st Dist.] 2007, no

pet.)…………………………………………………………………………………………………. 21

Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374 (Tex. 2004)………………. 19

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex.

2009)………………………………………………………………………………………………. 19

Neimes v. Ta, 985 S.W.2d 132 (Tex. App.—San Antonio 1998, pet. dism’d by

agr.)…………………………………………………………………………………………………. 16

O’Connell v. O’Connell, 843 S.W.2d 212 (Tex. App.—Texarkana 1992, no

writ)……………………………………………………………………………………………….. 22

Perez v. Embree Const. Group, Inc., 228 S.W.3d 875 (Tex. App.—Austin 2007,

pet. denied)………………………………………………………………………………………. 13

State v. H.M. Huber Corp., 145 Tex. 517, 199 S.W.2d 501 (1947)…………………….. 21

Spectrum Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997)………………………………….18

3

Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002)………………………………. 19

Tucker v. Brackett, 28 Tex. 336 (1866) ……………………………………………………….. 21

Waddy v. City of Houston, 834 S.W.2d 97 (Tex. App.—Houston [1st Dist.] 1992,

writ denied)……………………………………………………………………………………….17

Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003)……………………………………………. 13

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding)……………………13

Federal cases:

Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120 (5th Cir. 1997)………………… 21

United States v. Atkinson, 297 U.S. 157, 56 S. Ct. 391 (1936)………………………….. 21

Rules:

TEX. R. APP. P. 33.1(a)(1)…………………………………………………………………………….. 21

TEX. R. APP. P. 38.9…………………………………………………………………………………….. 19

TEX. R. CIV. P. 166a(c)…………………………………………………………………… 12, 16, 19,21

4

STATEMENT OF FACTS

Appellant, Randolph A. Lopez d/b/a Brown Hand Center and

d/b/a Brown Medical Center, is called “Lopez” in this brief. Appellee,

Cox Texas Newspapers, L.P. d/b/a Austin American Statesman, is

called “Cox.”

***

On March 12, 2013, Cox sued Michael Glyn Brown and Lopez

on a sworn account for failing to pay for advertising ran in Cox’s

newspaper—the Austin American Statesman—for the year of 2012

(CR 5-11). Cox alleged as theories of recovery breach of contract,

unjust enrichment, and fraud (CR 5-11). Lopez filed a general denial

(CR 12).

On November 19, 2013, Cox filed a notice of nonsuit as to

defendant Michael Glyn Brown, leaving Lopez as the only remaining

defendant (CR 14-15).

On February 12, 2014, Cox filed a traditional motion for

summary judgment (CR 16-41). Attached to the motion is Lopez’s

response to requests for admission, wherein he admits that:

1. On or before December 1, 2012, Plaintiff delivered to

Defendant the goods, wares, merchandise, or services

referred to in the invoice(s) and/or statement(s)

5

labeled “Exhibit A” and attached to Plaintiff’s Original

Petition filed in this suit.

2. Defendant accepted the goods, wares, merchandise, or

services delivered by Plaintiff and referred to in

request for admission number 1.

3. The goods, wares, merchandise, or services referred to

in request for admission number 1 were delivered to

Defendant by Plaintiff in the quantities shown in the

invoices referred to in “Exhibit A” attached to

Plaintiff’s Original Petition.

4. The prices charged for the goods, wares, merchandise,

or services referred to in request for admission number

1 were the prices agreed to by Plaintiff and Defendant.

5. The balance shown on the invoices referred to in

request for admission number 1 represents the value of

the goods, merchandise, or services delivered to

Defendant by Plaintiff.

***

7. The principle amount due and owing to Plaintiff from

Defendant for the goods, wares, merchandise, or

services referred to in request for admission number 1

was $37, 415.00 as of December 1, 2012.

8. Except for any credits or payments shown on “Exhibit

A” attached to Plaintiff’s Original Petition, Defendant

has failed to pay the amount due Plaintiff on the

account that is the subject of this suit.

9. On or before 30 days before the filing of this lawsuit,

Plaintiff presented to Defendant a claim for payment of

the outstanding balance referred to in request for

admission number 7.

10. The goods, wares, merchandise, or services received by

Defendant from Plaintiff conform to all

representations and warranties made, if any.

11. All sums due on the account were payable in Travis

County, Texas.

(CR 18-21).

6

On February 18, 2014, Lopez filed a suggestion of bankruptcy

stating that on October 15, 2013, the “Brown Medical Center” had

filed a petition for voluntary bankruptcy (CR 42-43). However, the

appellate record indicates that Michael Glynn Brown and Brown

Medical Center, Inc. filed petitions for bankruptcy1 (CR 58). Thus,

there was no bankruptcy stay affecting the case because the two

parties to the bankruptcy cases were not parties to this case. See 11

U.S.C. § 362. Lopez’s suggestion of bankruptcy hints that “Randolph

A. Lopez d/b/a Brown Hand Center and d/b/a Brown Medical

Center” filed for bankruptcy, but that is clearly not the case (CR 46).

Even though he was aware of the motion for summary

judgment hearing, Lopez chose not to file a response (CR 46).

On March 23, 2014, the trial court granted Cox’s motion for

summary judgment and entered a final judgment against Lopez in the

amount of $37,415.00 plus $8,100.09 in pre-judgment interest,

$12,471.67 in attorney fees, post-judgment interest, and appellate

attorney’s fees (CR 45).

1 The two cases are more particularly described as Case Number 13-

35892-H4-11 and Case Number 13-36405-H4-11, and were pending in the

United States Bankruptcy Court for the Southern District of Texas.

Moreover, the two filings were being jointly administered under Case

Number 13-35892 (CR 58).

7

On May 21, 2014, Lopez filed a “Motion to Extend

Postjudgment Deadlines” because he “nor his attorney received

notification until twenty days after the final judgment was signed”

(CR 83-84). On that same day, Lopez filed a “Motion for

Reconsideration and New Trial” wherein he argues (1) that a

suggestion of bankruptcy filed by “Brown Medical Center” stayed the

case even though neither Lopez nor Brown Medical Center, Inc. were

a party to the bankruptcy case, (2) that there is “a genuine issue of

material fact as to who contracted with Cox to obtain advertising

services for Dr. Lopez,” (3) that because Cox lacks standing to pursue

the claim against Lopez he has a meritorious defense, 2 and (4) that

Lopez’s failure to appear was the result of mistake or accident—

namely, although he was aware of the motion for summary judgment

hearing, he filed a suggestion of bankruptcy instead of a response to

the motion for summary judgment believing the case would be stayed

(CR 46-54). In support of the motion for new trial Lopez attached the

affidavit of his secretary, Elizabeth Deleon, who stated in part:

I assisted with the filing of all of the pleadings

in this matter, including the Suggestion of

Bankruptcy filed on February 18, 2014. After

filing the Suggestion of Bankruptcy, I

2 Lopez does not pursue the standing argument on appeal.

8

contacted the Court to have the hearing on

Plaintiff’s Motion for Summary Judgment

removed from the calendar. I was advised

that the proceeding should not go forward,

and that Plaintiff’s counsel should call the

court and cancel said hearing if they were in

receipt of the Suggestion of Bankruptcy. I was

also told that the Judge would not sign an

order on Plaintiff’s motion as a suggestion of

bankruptcy was on file.

I attempted to contact Mr. Bill Malone by

telephone after my conversation with the

Court. I also emailed and called Plaintiff’s

counsel, Mr. Bill Malone, several times, to no

avail. Attached [is a copy of the] email I sent

to Mr. Malone on March 18, 2014 prior to the

hearing, in which I inquired as to whether or

not he had removed the hearing from the

Court’s docket. I received no response (CR

108-109).

On July 1, 2014, the trial court granted the motion to extend the

post-judgment deadlines stating “Defendant did not receive actual

notice of the Court’s March 18, 2014 Order until April 24, 2014”3

(Sup. CR 4).

The motion for new trial was denied by operation of law. See

TEX. R. CIV. P. 329b(c).

3 There is no order dated March 18, 2014, but the order granting the

motion for summary judgment is signed March 28, 2014, and is filed

stamped March 18, 2014 (CR 45).

9

SUMMARY OF ARGUMENT

According to the supreme court’s opinion in Carpenter v.

Cimarron Hydorcarbons Corporation, the Craddock default

standard does not apply in this case because Lopez had notice of the

motion for summary judgment hearing.

When the trial court denied Lopez’s motion for new trial it was

confronted with the following circumstances: (1) Lopez stated that he

had intentionally not filed a response to the motion for summary

judgment because he “believed” the suggestion of bankruptcy that he

filed would stay the proceedings; (2) the suggestion of bankruptcy

and motion for new trial filed by Lopez misleadingly suggests that

“Randolph A. Lopez d/b/a Brown Hand Center and d/b/a Brown

Medical Center” had filed for bankruptcy when that is not the case;

and (3) Lopez’s argument to the trial court that it was Cox’s fault for

Lopez’s failure to respond reflects badly on Lopez’s credibility. Under

these circumstances, it was not an abuse of discretion for the trial

court to have denied Lopez’s motion for new trial.

10

ARGUMENT AND AUTHORITIES

1.

Introduction

Lopez argues on appeal that the trial court abused its discretion

in denying his motion for new trial because, as a matter of law, his

failure to timely respond to Cox’s motion for summary judgment is

excused under the Craddock default-judgment standard.4 More

specifically, Lopez argues in subparts a, b, c, and d of his brief that (a)

under Craddock his failure to respond to Cox’s motion for summary

judgment was not the result of conscious indifference; (b) and (c)

under Craddock he has two meritorious defenses—he did not sign the

contract in question and on remand the trial court may award less

attorney’s fees under a segregation theory; and (d) under Craddock

Cox will not be harmed by the grant of a new trial. These arguments

are discussed separately below.

4 “A default judgment should be set aside and a new trial ordered in

any case in which the failure of [the] defendant to answer before judgment

was not intentional, or the result of conscious indifference on his part, but

was due to a mistake or accident, provided the motion for new trial sets up

a meritorious defense and is filed at a time when the granting thereof will

occasion no delay or otherwise work an injury to the plaintiff.” Craddock

v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939).

11

2.

Craddock is not the standard of review

Lopez argues that the Craddock default standard applies in the

context of the default summary judgment proceeding in this case. See

Aplt. Br. at 8-10. However, Craddock clearly does not apply and the

circumstances of this case are squarely controlled by the holding in

Carpenter v. Cimarron Hydorcarbons Corp., 98 S.W.3d 682 (Tex.

2002). In Carpenter, the supreme court held that “Craddock does

not apply to a motion for new trial after summary judgment is

granted on a motion to which the nonmovant failed to timely respond

when the respondent had notice of the hearing and an opportunity to

employ the means our civil procedure rules make available to alter

the deadlines Rule 166a imposes.” Id. at 683-84 (emphasis added).

Thus, at least when the nonmovant had notice prior to a hearing,

Craddock does not apply to a motion for new trial following a default

summary judgment. Id.

Here, Lopez admits that he had notice of the hearing of Cox’s

motion for summary judgment and intentionally chose to file a

suggestion of bankruptcy instead of a response to the motion for

summary judgment (CR 46-54; 108-109). Therefore, the trial court’s

12

ruling on Lopez’s motion for new trial is subject to an abuse of

discretion standard of review, not the Craddock default standard. See

Tex. R. Civ. P. 320 (“New trials may be granted and judgment set

aside for good cause[.]”); Perez v. Embree Const. Group, Inc., 228

S.W.3d 875, 885 (Tex. App.—Austin 2007, pet. denied) (“The

resolution of a motion for new trial is left up to the trial court’s

discretion.”).

Under the abuse of discretion standard of review, a trial court

abuses its discretion when it acts arbitrarily or unreasonably, without

reference to guiding rules or principles, or by failing to analyze or

apply the law correctly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

Moreover, a trial court has no discretion in determining what the law

is or applying the law to the facts and a clear failure by the trial court

to analyze or apply the law correctly will constitute an abuse of

discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992 (orig.

proceeding). An abuse of discretion has not occurred merely because

an appellate would have decided the matter differently. Walker v.

Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). In making an abuse of

discretion determination, the appellate court views the evidence in

the light most favorable to the trial court’s ruling and indulges every

13

legal presumption in favor of the judgment. Lasikplus v. Mattioli,

418 S.W.3d 210, 216 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(“When consideration of evidence is required, we view it in the light

most favorable to the trial court’s order, indulging every reasonable

inference in favor of the trial court’s determination.”); Carlin v. 3V,

Inc., 928 S.W.2d 291, 294 (Tex. App.—Houston [14th Dist.] 1996, no

pet.) (“[W]here no findings of fact are given, it will be presumed the

trial court made all findings necessary to support the interlocutory

order.”); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston

[1st Dist.] 1993, writ denied).

Thus, this Court should uphold the trial court’s denial of

Lopez’s motion for new trial if the ruling was not arbitrary or

unreasonable, was guided by the proper rules and principles, and is

supported by evidence as viewed in the light most favorable to the

ruling.

3.

Conscious indifference

In Part B, a of appellant’s brief, Lopez argues that under

Craddock his failure to respond to Cox’s motion for summary

judgment was not the result of conscious indifference. See Aplt. Br. at

14

12-15. Again, the Craddock default standard is not the correct

standard of review, but rather the abuse of discretion standard should

be applied.

Lopez’s reason for not filing a response is that his lawyer

believed the suggestion of bankruptcy would stay the case thereby

eliminating the need to respond to the motion for summary judgment

(CR 46). See also Aplt. Br. at 4. Lopez also argued to the trial court

(but not on appeal) that his failure to respond was somehow Cox’s

fault; he stated in this regard in his motion for new trial:

Dr. Lopez’s failure to respond and appear at

the hearing on Plaintiff’s Motion for Summary

Judgment was not intentional or the result of

conscious indifference. Dr. Lopez timely filed

a suggestion of bankruptcy with [the trial

court] … which he mistakenly believed stayed

all pending matters in [the trial court].

Plaintiff’s counsel did not inform Dr. Lopez

that he intended to proceed, nor did he return

any of Dr. Lopez’s phone calls. After lying in

wait in what can only be described as an effort

to sandbag Dr. Lopez, Plaintiff’s counsel

waited more than thirty days to provide Dr.

Lopez with post-judgment discovery so as not

to alert Dr. Lopez of the entry of the March 18

judgment (CR 46-47).

Although Cox’s “fault” is not pointed to by Lopez on appeal as a basis

for reviewing the trial court’s ruling, under the abuse of discretion

standard of review, this Court should consider that argument and the

15

evidence introduced by Lopez in support thereof as part of the totality

of the circumstances confronting the trial court as a basis of its denial

of the motion for new trial—basically the ridiculousness of the

argument likely (and properly) caused the trial court to discount the

credibility of Lopez.

As for the rules and principles that the trial court was required

to apply to the request for a new trial, Rule 166a(c) provides that

“[e]xcept on leave of court, the adverse party, not later than seven

days prior to the day of hearing may file and serve opposing affidavits

or other written response.” TEX. R. CIV. P. 166a(c). And, although a

trial court may allow a late response to a motion for summary

judgment, Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 176 (Tex.

App.—Fort Worth 1996, no writ), the non-movant must obtain leave

of court, Neimes v. Ta, 985 S.W.2d 132, 139 (Tex. App.—San Antonio

1998, pet. dism’d by agr.).

If the trial court allows a late response, the court “must

affirmatively indicate in the record acceptance of the late filing.”

Farmer, 919 S.W.2d at 176. Absent an indication that the trial court

allowed the late filing, the appellate court should presume the trial

court refused the late filing, even if the response is included in the

16

appellate record. Waddy v. City of Houston, 834 S.W.2d 97, 101

(Tex. App.—Houston [1st Dist.] 1992, writ denied).

When considering the motion for new trial, the trial court was

confronted with a party (Lopez) that had intentionally not filed a

response to the motion for summary judgment with the explanation

for not doing so being that the party (Lopez) believed that the

suggestion of bankruptcy would stay the proceedings. This “belief”

was, under all of the circumstances surrounding it, hard to accept as

truthfully felt. At the very least it was clearly not supported by the

law because a non-parties bankruptcy filing never stays a judicial

proceeding. The trial court was also confronted with a suggestion of

bankruptcy and a motion for new trial that suggested incorrectly that

“Randolph A. Lopez d/b/a Brown Hand Center and d/b/a Brown

Medical Center” had filed for bankruptcy when that is not the case

(CR 46). This slight seems intentional. And, the trial court was

confronted with the argument that it was Cox’s fault for Lopez’s

failure to respond, an argument that reflects badly on Lopez’s

credibility. Under these circumstances, it was not an abuse of

discretion for the trial court to have denied the motion for new trial.

17

4.

Meritorious defense—“did not sign contract”

In Part B, b of appellant’s brief, Lopez argues that under

Craddock he has a meritorious defense—namely, that he did not sign

the contract in question. See Aplt. Br. at 16-19. Within this argument,

Lopez claims that the summary judgment proof contained in Cox’s

motion presents a genuine issue of material fact as to whether he

signed the contract. See Aplt. Br. at 17 (“Cox cannot establish, based

on the evidence in this record, that Dr. Lopez is a party to the

Contract.”), and at 18 (“From this it seems clear that the contracting

party was Brown and not Dr. Lopes, but at a minimum, it raises a fact

issue.”). In making this argument, Lopez convolutes the Craddock

default standard with the summary judgment standard of review.

The proper inquiry in the review of a default-type motion for

summary judgment is whether the motion for summary judgment

itself expressly presents the grounds upon which it is made and

whether it stands or falls on these grounds alone. See Spectrum Inc.

v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (The movant’s “motion

for summary judgment must itself expressly present the grounds

upon which it is made, and must stand or fall on these grounds

18

alone.”). In that case, the standard of review would be de novo.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). Moreover, a movant must prove that there is

no genuine issue regarding any material fact and that it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex.

Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A matter

is conclusively established if reasonable people could not differ as to

the conclusion to be drawn from the evidence. See City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005). To determine if there is a

fact issue, the evidence is viewed in the light most favorable to the

nonmovant, crediting favorable evidence if reasonable jurors could do

so, and disregarding contrary evidence unless reasonable jurors could

not. Id. at 827. A reviewing court should indulge every reasonable

inference and resolve any doubt in the nonmovant’s favor. Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

If this Court is willing grant Lopez leeway and construe his

appellant’s brief as having properly raised the issue of the adequacy of

Cox’s motion for summary judgment, see TEX. R. APP. P. 38.9, the

Court will nevertheless find that that argument fails. This is because,

at best, Lopez’s argument is limited to the claim that there is a fact

19

question as to whether Lopez signed the contract in question; yet, he

admitted in the requests for admission that he is liable under the

contract (CR 18-41). Lopez’s argument to circumvent the admissions

problem is that on remand the trial court could undeem the

admissions. See Aplt. Br. at 19. However, Lopez did not file a motion

to undeem the admissions and the trial court considered the motion

for summary judgment with the admissions as part of the summary

judgment proof. Therefore, the summary judgment proof shows, as a

matter of law, that there was no genuine issue regarding whether

Lopez was obligated under the contract that is the basis of this case.

5.

Meritorious defense—“attorney’s fees”

In Part B, c of appellant’s brief, Lopez argues that under

Craddock he has a meritorious defense—namely, that on remand the

trial court may award less attorney’s fees under a segregation theory.

See Aplt. Br. at 20-12. Because Lopez argues in this portion of his

brief that the trial court abused its discretion by not granting the

motion for new trial (he does not convolute the motion for summary

judgment standard as he does in Part B, b of his brief), the only

20

question is whether the trial court was within its discretion in denying

the motion for new trial.

This argument was never presented to the trial court for

consideration. Of course, there is a long-standing rule that an issue

may not be raised on appeal if not first presented in the trial court.

TEX. R. APP. P. 33.1(a)(1).5 The practical reasons for this rule are well-

founded and widely recognized.6 Moreover, the rule applies to

summary judgment proceedings. TEX. R. CIV. P. 166a(c) (“Issues not

expressly presented to the trial court by written motion, answer or

other response shall not be considered on appeal as grounds for

reversal [of a summary judgment].”). 7

5 See also In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (to preserve

for appellate review, including constitutional error, a party must present to

trial court timely request, motion, or objection, state specific grounds

thereof, and obtain ruling); State v. H.M. Huber Corp., 145 Tex. 517, 199

S.W.2d 501, 502 (1947); Tucker v. Brackett, 28 Tex. 336, 340 (1866);

Gumble v. Grand Homes 2000, L.P., 334 S.W.3d 1, 3-4 (Tex. App.—Dallas

2007, no pet.) (citing many cases for the proposition that “a party is

required to present a complaint to the trial judge before being allowed to

raise the issue on appeal”).

6 See, e.g., Crawford v. Falcon Drilling Co., Inc., 131 F.3d 1120, 1129

(5th Cir. 1997) (“A chief justification for our general rule against permitting

new issues to be raised on appeal is the concern ‘of the public interest’ for

protecting the finality of judgment.”) (citing United States v. Atkinson, 297

U.S. 157, 159, 56 S. Ct. 391 (1936)).

7 Little v. Needham, 236 S.W.3d 328, 333 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) (applying rule to non-movant in summary judgment

case); Lewis v. Nolan, 105 S.W.3d 185, 189 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied) (applying rule to movant in summary judgment

21

Accordingly, this argument should be overruled.

6.

“No harm or injury”

In Part B, d of appellant’s brief, Lopez argues that under

Craddock he has Cox will not be harmed by the grant of a new trial.

This is a purely Craddock element and does factor into the analysis of

whether the trial court abused its discretion in denying the motion for

new trial. But even if Craddock were the proper standard, Cox is

harmed by having had to incur the attorney’s fees of dealing with the

“default” because there is no offer or evidence presented by Lopez in

his motion for new trial that he was ready and willing to reimburse

Cox for his expenses as required under Craddock. See, e.g., O’Connell

v. O’Connell, 843 S.W.2d 212, 220 (Tex. App.—Texarkana 1992, no

writ) (holding that the appellant must show it is ready and must offer

to reimburse the appellee for expenses).

case and stating “summary judgment cannot be affirmed on a ground not

raised in the motion”).

22

PRAYER

Accordingly, appellee, Cox Texas Newspapers, L.P. d/b/a

Austin American Statesman, prays that this Court affirm the

judgment of the trial court.

Respectfully submitted,

/s/Timothy A. Hootman_____

Timothy A. Hootman

SBN 09965450

2402 Pease St

Houston, TX 77003

713.247.9548

713.583.9523 (fax)

E-mail: thootman2000@yahoo.com

Bill Malone, Jr.

SBN 12877500

8650 Spicewood Springs, No 145-

598

Austin, TX 78759

ATTORNEYS FOR APPELLEE, COX

TEXAS NEWSPAPERS, L.P.

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CERTIFICATE OF WORD COUNT

I hereby certify that, in accordance with Rule 9.4 of the Texas

Rules of Appellate Procedure, that the number of words contained in

this document are 4,638 according to the computer program used to

prepare this document.

Dated: January 28, 2015.

/s/Timothy A. Hootman_____

Timothy A. Hootman

CERTIFICATE OF SERVICE

I hereby certify that, in accordance with Rule 9.5 of the Texas

Rules of Appellate Procedure, I have served the forgoing document

upon the following attorneys by personal mail, commercial delivery

service, fax, or electronic service:

Isaac J. Huron

Ramon Rodriguez

Davis, Cedillo & Mendoza

McCombs Plaza, Ste 500

San Antonio, TX 78212

Dated: January 28, 2015.

/s/Timothy A. Hootman_____

Timothy A. Hootman

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