Opinion issued August 29, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-01119-CV ——————————— AZEL GARRISON GOOLSBEE, Appellant V. HEB GROCERY COMPANY, OSCAR MORENO, JUANITA L. SANDOVAL, R. IRVIN, AND UNIDENTIFIED HEB GROCERY COMPANY EMPLOYEES, Appellees
On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2010-61454
MEMORANDUM OPINION
Azel Garrison Goolsbee, appeals the trial court’s order granting summary
judgment to appellees, HEB Grocery Company (“HEB”), Oscar Moreno, Juanita L. Sandoval, R. Irvin, and unidentified HEB Grocery Company employees on
Goolsbee’s claims. We affirm.
Background
Bellaire Police Officer Juanita Sandoval responded to a reported theft at an
HEB grocery store in September 2009, and spoke with an HEB employee who
alleged that Goolsbee had removed cash from a wallet that the employee had
inadvertently left in a bathroom stall. Bellaire police spoke with Goolsbee and
subsequently arrested her for theft and possession of a controlled substance. 1 After
spending five days in jail, Goolsbee was released and the charges against her were
dismissed for insufficient evidence.
In September 2010, Goolsbee filed suit asserting claims of defamation, false
arrest, false imprisonment, conversion, intentional infliction of emotional distress,
negligence, and gross negligence against appellees. 2 Goolsbee’s attorney
subsequently withdrew from the case. On August 23, 2011, HEB, Moreno, Irvin,
and Sandoval filed their first amended answer and verified denial, and thereafter
filed special exceptions and a motion to dismiss. The unidentified HEB employees
were not parties to the answer, special exceptions, or motion to dismiss.
1 Goolsbee’s purse contained prescription medication for which she allegedly did not have a prescription. 2 In her petition, Goolsbee incorrectly identifies HEB Grocery Company as HEB Food Stores, Inc. Officer Sandoval is also incorrectly identified as an HEB employee.
2 On October 31, 2011, the trial court granted the special exceptions. In an
order dated November 8, 2011—in which the court noted that Goolsbee had failed
to replead in accordance with the court’s September 30, 2011 order—the court
dismissed Goolsbee’s claims against HEB, Moreno, Irvin, and Sandoval with
prejudice. Goolsbee’s claims against unidentified HEB employees, however,
remained.
At the time the court signed its November 8, 2011 dismissal order, a hybrid
no-evidence and traditional motion for summary judgment on behalf of all
appellees, including the unidentified HEB employees, was pending before the
court. On November 28, 2011, the trial court granted appellees’ motion without
specifying the grounds. Goolsbee timely filed this appeal.
Discussion
Goolsbee, appearing pro se, contends that the trial court erred in granting
summary judgment on her claims. Appellees assert that we do not have appellate
jurisdiction over Goolsbee’s appeal. Alternatively, they argue that the trial court
properly granted summary judgment as to Goolsbee’s claims.
A. Jurisdiction
As a threshold matter, we address appellees’ contention that we do not have
jurisdiction over Goolsbee’s appeal. Appellees contend that Texas law does not
recognize “John Doe” pleadings or permit a judgment against an unidentified
3 defendant and, therefore, Goolsbee’s reference to unidentified HEB employees was
inadequate to have them considered as party defendants. Thus, they reason, the
trial court’s November 8 order dismissing Goolsbee’s claims against HEB,
Moreno, Irvin, and Sandoval, was a final, appealable judgment disposing of all
claims and parties to the suit, and Goolsbee’s failure to file her notice of appeal
within thirty days from the date the dismissal order was signed renders her appeal
untimely. We disagree. Texas courts have recognized that an unidentified
defendant may be sued as a “John Doe.” See Wembley Inv. Co. v. Herrera, 11
S.W.3d 924, 925 (Tex. 1999) (per curiam) (recognizing unidentified defendant
sued as “John Doe No. 1” and dismissing without being served); Retzlaff v.
GoAmerica Comms. Corp., 356 S.W.3d 689, 701–02 (Tex. App.—El Paso 2011,
no pet.) (concluding that “John and/or Jane Doe” defendants were not entitled to
dismissal from lawsuit under vexatious litigant statute requiring trial court to
dismiss litigation “as to a moving defendant” where unidentified defendants did
not move for dismissal); Operation Rescue-Nat’l v. Planned Parenthood of Hous.
& Se. Tex., Inc., 937 S.W.2d 60, 87–88 (Tex. App.—Houston [14th Dist.] 1996)
(affirming trial court’s assessment of costs incurred to serve John and Jane Doe
defendants by publication), aff’d as modified, 975 S.W.2d 546 (Tex. 1998); see
also Mosley v. John Doe Prison Guard #1, No. 01-09-00214-CV, 2010 WL
3212130, at *2 (Tex. App.—Houston [1st Dist.] Aug. 12, 2010, no pet.) (mem. op.)
4 (concluding Chapter 104 of Texas Civil Practice and Remedies Code dealing with
State liability provided no basis for inmate’s claims against anonymous defendants
sued in their individual capacity). Thus, for purposes of determining whether a
judgment is final, claims against an unidentified defendant must be treated no
differently than claims against a named defendant. See Herrera v. Wembley Inv.
Co., 12 S.W.3d 83, 88–89 (Tex. App.—Dallas 1998) (treating claims against John
Doe defendants identical to claims against identified defendants in determining
whether judgment was final and appealable), rev’d on other grounds, 11 S.W.3d
924 (Tex. 1999) (per curiam).
Here, the dismissal order did not dispose of Goolsbee’s claims against the
unidentified HEB employees and was therefore not final. The trial court’s
November 28 order on appellees’ summary judgment motion, however, disposed
of all claims and all parties (including the unidentified defendants) and was a final,
appealable judgment. Because Goolsbee filed her notice of appeal within thirty
days of the November 28 order (on December 28, 2011), we have jurisdiction to
consider her appeal.
B. Summary Judgment
Appellees also argue that the trial court properly granted their motion for
summary judgment because Goolsbee failed to present evidence raising a genuine
issue of material fact as to the challenged elements of her claims.
5 We review a trial court’s decision to grant a motion for summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
When, as here, a summary judgment does not specify the grounds on which it was
granted, the appealing party must demonstrate that none of the proposed grounds is
sufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d
471, 473 (Tex. 1995); West v. SMG,
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Opinion issued August 29, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-01119-CV ——————————— AZEL GARRISON GOOLSBEE, Appellant V. HEB GROCERY COMPANY, OSCAR MORENO, JUANITA L. SANDOVAL, R. IRVIN, AND UNIDENTIFIED HEB GROCERY COMPANY EMPLOYEES, Appellees
On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2010-61454
MEMORANDUM OPINION
Azel Garrison Goolsbee, appeals the trial court’s order granting summary
judgment to appellees, HEB Grocery Company (“HEB”), Oscar Moreno, Juanita L. Sandoval, R. Irvin, and unidentified HEB Grocery Company employees on
Goolsbee’s claims. We affirm.
Background
Bellaire Police Officer Juanita Sandoval responded to a reported theft at an
HEB grocery store in September 2009, and spoke with an HEB employee who
alleged that Goolsbee had removed cash from a wallet that the employee had
inadvertently left in a bathroom stall. Bellaire police spoke with Goolsbee and
subsequently arrested her for theft and possession of a controlled substance. 1 After
spending five days in jail, Goolsbee was released and the charges against her were
dismissed for insufficient evidence.
In September 2010, Goolsbee filed suit asserting claims of defamation, false
arrest, false imprisonment, conversion, intentional infliction of emotional distress,
negligence, and gross negligence against appellees. 2 Goolsbee’s attorney
subsequently withdrew from the case. On August 23, 2011, HEB, Moreno, Irvin,
and Sandoval filed their first amended answer and verified denial, and thereafter
filed special exceptions and a motion to dismiss. The unidentified HEB employees
were not parties to the answer, special exceptions, or motion to dismiss.
1 Goolsbee’s purse contained prescription medication for which she allegedly did not have a prescription. 2 In her petition, Goolsbee incorrectly identifies HEB Grocery Company as HEB Food Stores, Inc. Officer Sandoval is also incorrectly identified as an HEB employee.
2 On October 31, 2011, the trial court granted the special exceptions. In an
order dated November 8, 2011—in which the court noted that Goolsbee had failed
to replead in accordance with the court’s September 30, 2011 order—the court
dismissed Goolsbee’s claims against HEB, Moreno, Irvin, and Sandoval with
prejudice. Goolsbee’s claims against unidentified HEB employees, however,
remained.
At the time the court signed its November 8, 2011 dismissal order, a hybrid
no-evidence and traditional motion for summary judgment on behalf of all
appellees, including the unidentified HEB employees, was pending before the
court. On November 28, 2011, the trial court granted appellees’ motion without
specifying the grounds. Goolsbee timely filed this appeal.
Discussion
Goolsbee, appearing pro se, contends that the trial court erred in granting
summary judgment on her claims. Appellees assert that we do not have appellate
jurisdiction over Goolsbee’s appeal. Alternatively, they argue that the trial court
properly granted summary judgment as to Goolsbee’s claims.
A. Jurisdiction
As a threshold matter, we address appellees’ contention that we do not have
jurisdiction over Goolsbee’s appeal. Appellees contend that Texas law does not
recognize “John Doe” pleadings or permit a judgment against an unidentified
3 defendant and, therefore, Goolsbee’s reference to unidentified HEB employees was
inadequate to have them considered as party defendants. Thus, they reason, the
trial court’s November 8 order dismissing Goolsbee’s claims against HEB,
Moreno, Irvin, and Sandoval, was a final, appealable judgment disposing of all
claims and parties to the suit, and Goolsbee’s failure to file her notice of appeal
within thirty days from the date the dismissal order was signed renders her appeal
untimely. We disagree. Texas courts have recognized that an unidentified
defendant may be sued as a “John Doe.” See Wembley Inv. Co. v. Herrera, 11
S.W.3d 924, 925 (Tex. 1999) (per curiam) (recognizing unidentified defendant
sued as “John Doe No. 1” and dismissing without being served); Retzlaff v.
GoAmerica Comms. Corp., 356 S.W.3d 689, 701–02 (Tex. App.—El Paso 2011,
no pet.) (concluding that “John and/or Jane Doe” defendants were not entitled to
dismissal from lawsuit under vexatious litigant statute requiring trial court to
dismiss litigation “as to a moving defendant” where unidentified defendants did
not move for dismissal); Operation Rescue-Nat’l v. Planned Parenthood of Hous.
& Se. Tex., Inc., 937 S.W.2d 60, 87–88 (Tex. App.—Houston [14th Dist.] 1996)
(affirming trial court’s assessment of costs incurred to serve John and Jane Doe
defendants by publication), aff’d as modified, 975 S.W.2d 546 (Tex. 1998); see
also Mosley v. John Doe Prison Guard #1, No. 01-09-00214-CV, 2010 WL
3212130, at *2 (Tex. App.—Houston [1st Dist.] Aug. 12, 2010, no pet.) (mem. op.)
4 (concluding Chapter 104 of Texas Civil Practice and Remedies Code dealing with
State liability provided no basis for inmate’s claims against anonymous defendants
sued in their individual capacity). Thus, for purposes of determining whether a
judgment is final, claims against an unidentified defendant must be treated no
differently than claims against a named defendant. See Herrera v. Wembley Inv.
Co., 12 S.W.3d 83, 88–89 (Tex. App.—Dallas 1998) (treating claims against John
Doe defendants identical to claims against identified defendants in determining
whether judgment was final and appealable), rev’d on other grounds, 11 S.W.3d
924 (Tex. 1999) (per curiam).
Here, the dismissal order did not dispose of Goolsbee’s claims against the
unidentified HEB employees and was therefore not final. The trial court’s
November 28 order on appellees’ summary judgment motion, however, disposed
of all claims and all parties (including the unidentified defendants) and was a final,
appealable judgment. Because Goolsbee filed her notice of appeal within thirty
days of the November 28 order (on December 28, 2011), we have jurisdiction to
consider her appeal.
B. Summary Judgment
Appellees also argue that the trial court properly granted their motion for
summary judgment because Goolsbee failed to present evidence raising a genuine
issue of material fact as to the challenged elements of her claims.
5 We review a trial court’s decision to grant a motion for summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
When, as here, a summary judgment does not specify the grounds on which it was
granted, the appealing party must demonstrate that none of the proposed grounds is
sufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d
471, 473 (Tex. 1995); West v. SMG, 318 S.W.3d 430, 437 (Tex. App.—Houston
[1st Dist.] 2010, no pet.). Any summary judgment ground that is not addressed
will be presumed to be valid. Harris v. Ebby Halliday Real Estate, Inc., 345
S.W.3d 756, 759 (Tex. App.—El Paso 2011, no pet.) (citing Star–Telegram, Inc. v.
Doe, 915 S.W.2d 471, 473 (Tex. 1995)).
Appellees moved for no-evidence and traditional summary judgment on
Goolsbee’s claims of defamation, false arrest, false imprisonment, conversion,
intentional infliction of emotional distress, negligence, and gross negligence.
Because the trial court did not specify the basis for granting summary judgment,
Goolsbee must show that none of the grounds proposed support the judgment
granted. West, 318 S.W.3d at 437. Although Goolsbee has appealed the summary
judgment in its entirety, she has not addressed any of the specific grounds raised in
appellees’ motion or included an argument as to why the trial court erred. See
Doe, 915 S.W.2d at 473. Because Goolsbee has failed to challenge the summary
judgment grounds as to any of her claims, the grounds raised to defeat those causes
6 of action are presumed to be valid. See Harris, 345 S.W.3d at 759 (noting that
when summary judgment ground goes unaddressed, its validity is presumed). We
overrule Goolsbee’s issue.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.