Dennis L. Berry v. Mike Covarrubias III, Cearin D. Jordan, William G. Solomon, and Maralo, L.L.C.

• Court: Court of Appeals of Texas
• Decided: July 22, 2004
• Docket: 14-03-01137-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 22, 2004

Affirmed and Memorandum Opinion filed July 22, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01137-CV

DENNIS L. BERRY, Appellant

V.

MIKE COVARRUBIAS III, CAERIN D. JORDAN, WILLIAM G. SOLOMON, AND MARALO, L.L.C., Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 03-19655

M E M O R A N D U M   O P I N I O N

Appellant Dennis L. Berry appeals a take-nothing summary judgment in favor of appellees Mike Covarrubias III, Caerin D. Jordan, William G. Solomon, and Maralo, L.L.C. (collectively, Aappellees@).  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from a legal dispute over possession of an automobile.  Covarrubias and Jordan (Berry=s nephew and the nephew=s wife) successfully sued Berry for conversion of a 1992 Dodge sedan.  While the appeal of that case was pending, Berry, proceeding pro se, sued appellees based on actions they allegedly took leading up to, and during, litigation of the conversion suit.^[1]  Berry alleged what may best be characterized as libel and slander, malicious prosecution, stalking, filing of frivolous pleadings, and loss of consortium.^[2]  He also charged appellees with being vexatious litigants and claimed mental anguish damages.^[3]  In his petition, Berry identified five events serving as the bases of his claims: (1) Jordan=s complaint against him for auto theft, which resulted in a police investigation that was subsequently closed without charges being issued; (2) Covarrubias and Jordan=s lawsuit against him in small claims court; (3) Covarrubias and Jordan=s complaint filed with the Consumer Fraud Division of the Harris County District Attorney=s Office, which subsequently closed the case without issuing charges; (4) Covarrubias and Jordan=s lawsuit against him in Harris County Civil Court at Law; and (5), Covarrubias and Jordan=s reporting of their judgment against Berry to a credit reporting agency before Berry=s appeal had been resolved .  Berry alleged that Solomon was retained to represent Covarrubias and Jordan and that Soloman was Maralo=s employee.

One month after Berry filed his petition, appellees filed a no-evidence motion for summary judgment and a traditional motion for summary judgment.^[4]  In the no-evidence motion, appellees challenged each of Berry=s causes of action, the mental anguish damages, and Maralo=s liability.  In the traditional motion, appellees relied on the following defenses: (1) limitations in relation to defamation and malicious prosecution, (2) immunity in relation to defamation, (3) Solomon=s immunity as an attorney against all claims for actions taken in litigation, and (4) engagement in a constitutional or statutorily protected right in relation to stalking.

Berry responded, Aenter[ing] the following specific evidence@: (1) Solomon=s testimony from the County Civil Court at Law proceedings in which Solomon referred to his having been retained in September 1999 and to his client=s not having requested disclosure; (2) a list of Berry=s exhibits from the Court at Law proceedings; (3) the Houston Police Department incident report showing Jordan as complainant in an investigation against Berry for auto theft, with the status indicated as Aunfounded@; (4) affidavits of purported witnesses to the incident in which Jordan made the complaint against Berry; and (5) correspondence from the District Attorney=s Consumer Fraud Division to Berry regarding Covarrubias=s complaints against Berry, with the indication the case was being closed because the complaint was civil in nature and subsequent correspondence from Solomon to  the District Attorney=s Office regarding Berry=s statements and his foreclosure on the car.  Berry also listed five Awritten objections@ to the motion for summary judgment: (1) the no-evidence claim Alack[ed] substance@ for want of discovery and was premature; (2) there are prescribed methods for discovery appellees could use to obtain evidence in Berry=s possession; (3) it was appellees= obligation to provide the premise of no evidence; (4) appellees= motion was supported by only one sworn affidavit (Solomon=s), which contained errors in substance; and (5) appellees stated the motion pertained to all appellees, but appellees failed to file any evidence regarding the participation of Covarrubias, Jordan, or Maralo.

Appellees filed detailed objections to Berry=s summary judgment proof.  They also moved to strike Berry=s claim for Amental anguish or emotional distress.@  In support of the latter, they provided his response to their request for an authorization permitting disclosure of medical records and bills, in which Berry stated:

Plaintiffs [sic] medical needs are maintained by the Veterans Administration and by Social Security and are without costs to the Plaintiff.  Without waiving those rights to amend his suit to include damages for those physical and/or mental injuries, at this time there are no claims by the Plaintiff for those damages.  Therefore, the Plaintiff does not authorize the disclosure of his medical records except that document used by the Veterans Administration to rate his service connected disability.^[5]

On June 20, 2003, the trial court granted appellees= motion to strike Berry=s claim for mental anguish or emotional distress and overruled all of their objections to Berry=s summary judgment proof.  On the same day, the trial court also rendered a final summary judgment ordering Berry take nothing against appellees, but taxed costs Aagainst defendant.@  The trial court did not state the grounds for granting summary judgment.

Appellees timely filed a motion to amend the judgment by providing the same relief as previously granted but taxing costs against Berry.  The trial court granted the motion and rendered an amended final judgment on August 15, 2003.  On August 25, 2003, Berry filed three motions:  (1) a motion for entry of an amended judgment regarding his Aadmission@ on mental injury, (2) a motion for new trial, and (3) a motion for sanctions.  In the motion for new trial, Berry reiterated the five Awritten objections@ to appellees= motion for summary judgment.  In the motion for sanctions, Berry complained of  (a)  Solomon=s alleged Aperjury@ regarding the date he was retained, (b) appellees= motion to strike Berry=s summary judgment proof, and (c) appellees= alleged failure to respond to Berry=s June 7, 2003 request for production.  The appellate record does not contain a written order disposing of these motions.^[6]

DISCUSSION

Issues One Through Six:  Challenges to Summary Judgment and Denial of the Motion for New Trial

Introduction and Legal Principles Governing Summary Judgment and Review

Berry=s issues.  In issues one through six, Berry challenges the trial court=s summary judgment and denial of his motion for new trial, in which he reiterated his Awritten objections@ to appellees= motions for summary judgment.  Although expressed as six issues, the issues are both multifarious and overlapping, often containing unconnected Afacts@ and legal citations. Nevertheless, the issues seem to reflect the following complaints:  (1) the appellees, as movants, did not meet their summary judgment burden (issues two, three, and five); (2) the trial court did not apply the correct standards to the summary judgment motions (issues one and six); (3) there was inadequate time for discovery (issue four); and (4) the trial court erred by not considering Berry=s summary judgment proof or his objections to the appellees= summary judgment proof (issues one and five).^[7]  Berry=s complaints largely overlook the fact appellees filed a no-evidence motion for summary judgment, as well as a traditional motion.

Summary judgment burden.  The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non‑movant.  Id. at 548B49.  The reviewing court must indulge every reasonable inference in favor of the non‑movant and resolve any doubts in its favor.  Id. at 549.

A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against him.  Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff=s theories of recovery, or pleads and conclusively establishes each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

No-evidence summary judgment and burden shift.  Additionally, after sufficient time for discovery has passed, a party may file a Ano-evidence@ motion for summary judgment if Athere is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.@  Tex. R. Civ. P. 166a(i).  The Ano‑evidence@ motion for summary judgment shifts the burden of proof to the non‑movant to produce evidence raising a genuine issue of material fact on the contested issue on which the non‑movant would bear the burden of proof at trial.  Russo v. Smith Int=l, Inc., 93 S.W.3d 428, 433 (Tex. App.CHouston [14th Dist.] 2002, pet. denied); see Tex. R. Civ. P. 166a(i).

Review of no-evidence summary judgment.  As with the traditional summary judgment, in reviewing a Ano-evidence@ summary judgment, we review the evidence in the light most favorable to the nonmovant and disregard all evidence and inferences to the contrary.  Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  We sustain a no-evidence summary judgment if  (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact.  Id.  Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak it does no more than create a mere surmise or suspicion of its existence, and in legal effect is no evidence.  Id. at 284B85.  More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair‑minded people to differ in their conclusions as to the existence of the vital fact.  Id. at 285.

De novo review and affirmance on any ground.  Because the propriety of summary judgment is a question of law, we review the trial court=s decision de novo.  See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).  If the trial court grants a motion for summary judgment without stating the grounds on which it relied, we must affirm the summary judgment if any ground argued in the motion was sufficient.  Blan v. Ali, 7 S.W.3d 741, 747B48 (Tex. App.CHouston [14th Dist.] 1999, no pet.); see Star‑Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).  Because appellees moved for summary judgment on both traditional and no-evidence grounds and the trial court did not specify which it granted, we can uphold the summary judgment on the basis of either motion.  Bruce v. K.K.B., Inc., 52 S.W.3d 250, 254 (Tex.  App.CCorpus Christi 2001, pet. denied); see FNFS, Ltd. v. Sec. State Bank & Trust, 63 S.W.3d 546, 548 (Tex. App.CAustin 2001, pet. denied); Barraza v. Eureka Co., 25 S.W.3d 225, 231 (Tex. App.CEl Paso 2000, pet. denied).

As discussed below, we conclude summary judgment was properly granted on each of Berry=s claims.  The grounds defeating some of Berry=s claims appear in appellees= no-evidence motion while the remainder of his claims fail on grounds presented in the traditional motion.  Before we turn to the individual claims, however, we address some initial matters raised by Berry=s issues and  his briefing in this court.

Initial Considerations

Berry complains there was inadequate time for discovery.  Although he made the same complaint in response to appellees= summary judgment motions, he did not file a motion for continuance or an affidavit explaining the need for further discovery before the summary judgment hearing.  Accordingly, he has waived this complaint.   Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 450B51 (Tex. App.CDallas 2002, no pet.) (citing Tenneco Inc. v. Enter.  Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996)).

We also observe that, although Berry attached summary judgment proof to his response to appellees= summary judgment motions, he did not direct the trial court to the portions of his evidence supporting the elements appellees challenged on each of his claims.  He does not do so in this court.  We are not required to marshal Berry=s proof and may overrule his challenges to the summary judgment based on  his failure to do so.  See Parker v. Dodge, 98 S.W.3d 297, 300 (Tex. App.CHouston [1st Dist.] 2003, no pet.); see also Rendleman v. Clarke, 909 S.W.2d 56, 59 (Tex. App.CHouston [14th Dist.] 1995, writ dism=d as moot) (stating failure to cite to relevant portions of the trial court record waives appellate review).  Nevertheless, we have reviewed Berry=s summary judgment evidence and review the summary judgment on the merits with regard to each of the claims.^[8]

Berry=s Claims

Libel, slander, and malicious prosecution: limitations.  Berry=s actions for libel, slander, and malicious prosecution are governed by a one-year limitations period.  Tex. Civ. Prac. & Rem. Code Ann. ' 16.002 (Vernon 2002).  Berry=s actions for libel and slander appear to be based on (1) Jordan=s statement to police during an investigation in October 1999, (2) charges filed by appellees with the Harris County District Attorney=s Office before November 13, 2000, and (3) Solomon=s letter to the Harris County District Attorney=s Office, dated December 4, 2000.^[9]  AA libel or slander claim accrues on the date of the communication or publication and not on the date of the consequences or sequelae.@  Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 131 (Tex. App.CHouston [14th Dist.] 1994, no writ).

To the extent any of Berry=s malicious prosecution claims are based on filings with the District Attorney=s Office, such claims would have accrued when charges were not accepted.  See Patrick v. Howard, 904 S.W.2d 941, 944 (Tex. App.CAustin 1995, no writ).  Berry=s petition and exhibits attached thereto confirm the file was closed on those charges by November 17, 2000.^[10]

Berry filed his petition on April 15, 2003, well over one year after each of the causes of action accrued.  Appellees conclusively proved their defense of limitations in relation to Berry=s claims for libel and slander and for malicious prosecution based on filings with the Harris County District Attorney=s Office.

Malicious prosecution: no evidence.  To the extent Berry=s malicious prosecution claim was based on appellees= suit in the County Court at Law conversion case, Berry had to prove termination of the proceeding in his favor.  See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996) (listing malicious prosecution elements, including termination of underlying proceeding in one=s favor).  Berry presented no summary judgment proof on that element.^[11]

Stalking: no evidence.  To establish his stalking claim under Texas Civil Practice and Remedies Code section 85.003, a plaintiff must prove either the defendants violated a restraining order prohibiting harassing behavior or:

(A) the defendant, while engaged in harassing behavior, by acts or words threatened to inflict bodily injury on the claimant or to commit an offense against the claimant, a member of the claimant=s family, or the claimant=s property;

(B) the defendant had the apparent ability to carry out the threat;

(C) the defendant=s apparent ability to carry out the threat caused the claimant to reasonably fear for the claimant=s safety or the safety of a family member;

(D) the claimant at least once clearly demanded that the defendant stop the defendant=s harassing behavior;

(E) after the demand to stop by the claimant, the defendant continued the harassing behavior;  and

(F) the harassing behavior has been reported to the police as a stalking offense.

Tex. Civ. Prac. & Rem. Code Ann. ' 85.003(3)(A)B(F) (Vernon Supp. 2004) (emphasis added).  Berry did not allege the existence or violation of a restraining order and provided no summary judgment proof the appellees= allegedly harassing behavior had been reported to the police as a stalking offense.

Filing of frivolous pleadings: no evidence.  Berry alleged the filing of Atwo frivolous pleadings evidenced by; the Justice Court of Harris County, Precinct 1, Place 7, Cause Number CV71C0001608, and; the Harris County Civil Court at Law # 3, Cause Number 761912, as defined in C.P.& R. Ch 9 and Ch 12.@  Texas Civil Practice and Remedies Code chapter 9 provides for the imposition of sanctions A[a]t the trial of the action or at any hearing inquiring into the facts and law of the action . . .@; it does not authorize an action brought in a separate proceeding.  See Tex. Civ. Prac. & Rem. Code Ann. ' 9.012(a) (Vernon 2002).

Texas Civil Practice and Remedies Code section 12.002 provides for liability if a person makes, presents, or uses a document or other record with

(1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;

(2) intent that the document or other record be given the same legal effect as a court record or document of a court created by or established under the constitution or laws of this state or the United States or another entity listed in Section 37.01, Penal Code, evidencing a valid lien or claim against real or personal property or an interest in real or personal property;  and

(3) intent to cause another person to suffer:

(A) physical injury;

(B) financial injury;  or

(C) mental anguish or emotional distress.

Tex. Civ. Prac. & Rem. Code Ann. ' 12.002(a) (Vernon 2002) (emphasis added).  Berry presented no summary judgment proof appellees presented or used a document or other record with knowledge that the document or other record was a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property.

Loss of consortium: no evidence.  A cause of action for loss of consortium must be based on a spousal or child/parent relationship.  Roberts v. Williamson, 111 S.W.3d 113, 119 (Tex. 2003) (declining to extend a claim for loss of consortium to parents of children who have been seriously injured); Ford Motor Co. v. Miles, 967 S.W.2d 377, 378B79 (Tex. 1998) (affirming lower court decision to extent it holds neither a stepparent nor a sibling may recover for loss of consortium); Reagan v. Vaughn, 804 S.W.2d 463, 465B66 (Tex. 1990) (recognizing for first time in Texas, cause of action by a child for loss of consortium of a parent).  Loss of consortium damages also cannot be awarded for harm that involves no physical injury. Browning‑Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 294 (Tex. 1994).  Berry presented no evidence of a familial relationship on which to base a claim for loss of consortium and no evidence of physical injury.

Mental anguish damages: no evidence.^[12]  To recover for mental anguish, Berry was required to prove such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation.  Phar‑Mor, Inc. v. Chavira, 853 S.W.2d 710, 712 (Tex. App.CHouston [1st Dist.] 1993, writ denied).  He also was required to show appellees, acting knowingly or with conscious indifference, caused a relatively high degree of mental pain and distress.  Id.  Mere worry, anxiety, vexation, resentment, embarrassment, or anger do not rise to the level of mental anguish.  Id. at 713.  Berry produced no evidence he suffered grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation.

Given our review of appellees= summary judgment motions, Berry=s response, and the summary judgment proof presented by both sides, we conclude the trial court properly granted appellees= motion for summary judgment.  We overrule issues one through six.^[13]

Issue Seven: Motion for Sanctions

In issue seven, Berry contends the trial court erred in denying his motion for sanctions.  This complaint appears to be based on Berry=s post-judgment motion for sanctions in which Berry cited Texas Rules of Civil Procedure 13, 166(a), (f), (h), and (i) and 215.2(b).

To preserve a complaint for appeal, a complaining party must either (1) obtain a ruling on his request, objection, or motion, or (2) lodge an objection to the trial court=s refusal to rule.  See Tex. R. App. P. 33.1(a); Cherry v. Lee, 899 S.W.2d 329, 331 (Tex. App.CHouston [14th Dist.] 1995, no writ) (construing predecessor to rule 33.1(a)).  The appellate record in the present case does not contain a written order denying Berry=s motion, a reporter=s record indicating an oral ruling, or an objection to the lack of a ruling.  Berry, nevertheless, directs this court=s attention to the docket sheet entry containing the notation, Amtn sanctions denied as moot.@  A docket entry, however, may not take the place of an order required to preserve error under Rule of Appellate Procedure 33.1(a).  See Pickell v. Guar. Nat=l Life Ins. Co., 917 S.W.2d 439, 441 (Tex. App.CHouston [14th Dist.] 1996, no writ) (stating same with regard to predecessor to Rule 33.1(a)).  Accordingly Berry has not preserved his complaint regarding disposition of his motion for sanctions.  See id. (holding appellant failed to preserve error under predecessor to Rule 33.1(a) when only indication trial court ruled on motion to transfer venue was docket sheet notation).

Nevertheless, we have reviewed Berry=s post-judgment motion and the documents to which it refers.  Berry=s sanctions motion rests mainly on Berry=s perception Solomon Alied@ about the date he was retained, with Berry=s other arguments stemming from that perception.  The documents Berry cites in the motion do not support his perception.  In addition, Berry also referred to rulings by the Civil Court at Law in the underlying case, but the relation of these rulings to Berry=s allegation of bad faith actions by the appellees is not clear from the motion or the record.

The decision to impose sanctions lies within the discretion of the trial court.  See  Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986) (regarding discovery sanctions under Rule 215); Zarsky v. Zurich Mgmt., Inc., 829 S.W.2d 398, 399 (Tex. App.BHouston [14th Dist.] 1992, no writ) (regarding Rule 13).  An appellate court may reverse a trial court for abuse of discretion only if, based on a search of the record, it is clear that the trial court=s decision was arbitrary and unreasonable.  See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985); Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex. 1970).  Therefore, the party that complains of abuse of discretion has the burden to bring forth a record showing such abuse.  Simon v. York Crane & Rigging Co.,  739 S.W.2d 793, 795 (Tex. 1987).  Additionally, a trial court cannot abuse its discretion if it reaches the right result even if for the wrong reason.  In re ExxonMobil Corp., 97 S.W.3d 353, 358 n.5 (Tex. App.CHouston [14th Dist.] 2003, orig. proceeding).

Given the preceding standards and the record before this court, we cannot conclude the trial court abused its discretion in denying Berry=s motion for sanctions.  Accordingly, we overrule issue seven.

Issue Eight: Challenges to Trial Court=s Order on Appellee Motion to Strike

In issue eight, Berry challenges the trial court=s order in which it granted appellees= motion to strike his mental anguish claim.  He also contends the trial court=s denial of appellees= objections to his summary judgment proof conflicts with the trial court=s grant of appellees= no-evidence summary judgment motion.

Motion to Strike

On appellees= motion, the trial court ordered Berry=s claims for physical damages and for mental anguish struck Apursuant to Tex. R. Civ. P. 194.2 and 215, or alternatively, pursuant to defendant=s motion for summary judgment, plaintiff shall take nothing on his claims for physical damages and for mental anguish due to his admission that he is not suing for such damages.@  In their summary judgment motion, appellees addressed Berry=s mental anguish claim in the no-evidence portion of their summary judgment motion, but not in the traditional portion.  In their motion to strike the mental anguish claim, appellees argued Berry had refused to produce medical records and had affirmatively stated, A>without waiving those rights to amend his suit to include damages for those physical and/or mental injuries, at this time there are no claims by the plaintiff for those damages.=@  Berry had prefaced this statement by explaining, APlaintiffs [sic] medical needs are maintained by the Veterans Administration and by Social Security and are without costs to the Plaintiff.@

As discussed above, in his response to appellee=s no-evidence summary judgment motion, Berry presented no evidence of mental anguish.  Thus, putting aside any admission on Berry=s behalf, the trial court=s ruling was correct on no-evidence grounds.

Alleged Conflict between Denial of Objections and Grant of No-Evidence Summary Judgment

Berry=s argument regarding the conflict between the trial court=s overruling of appellee=s objections to his summary judgment evidence and its grant of appellee=s no-evidence summary judgment motion appears to reflect a misunderstanding of the standards for granting a no-evidence summary judgment and the burden on the non-movant.  Denial of appellees= objections did not mean Berry=s proof was sufficient to raise a fact issue regarding the challenged elements of his claims.  As we discussed above, it was not.

The trial court=s ruling on appellee=s motion did not constitute reversible error and was not in conflict with its ruling on appellees= summary judgment motion.  Accordingly, we overrule issue eight.

Issue Nine: General Trial Court Error

In issue nine, Berry contends, AThe trial court erred by abusing it=s [sic] discretion and interpretation of the law, clearly depriving the Appellant of his rights to be heard.@  Berry=s discussion in support of this issue does not advance any theories beyond those we have considered and rejected above.  We overrule issue nine.

CONCLUSION

Having overruled Berry=s issues, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed July 22, 2004.

Panel consists of Justices Anderson, Hudson, and Draughn.^[14]

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^[1]    Covarrubias and Jordan initially sued Berry in a Justice of the Peace court.  When that court dismissed the case for lack of jurisdiction, they filed their lawsuit in Harris County Civil Court at Law No. 3, where they prevailed.  See Berry v. Covarrubias, No. 01‑02‑01141-CV, 2004 WL 36001 at *1 (Tex. App.CHouston [1st.  Dist.] Jan 08, 2004, no pet.) (memorandum op.) .  On January 8, 2004, the First Court of Appeals affirmed the judgment.  See id.

^[2]  Although appellees address Berry=s defamation claim as one involving libel and slander, Berry cites Texas Civil Practice and Remedies Code chapter 73 and refers only to libel.  The related allegation refers primarily to written documents, but also accuses appellees of Autter[ing] malicious false statements.@  See Tex. Civ. Prac. & Rem. Code Ann. ' 73.001 (Vernon 1997) (defining libel as Adefamation expressed in written or other graphic form . . .@); Messina v. Tri‑Gas Inc., 816 F. Supp. 1163, 1167 (S.D. Tex. 1993) (distinguishing libel and slander).

^[3]  Appellees characterize one of Berry=s claims as alleging malicious prosecution.  Berry did refer to malicious prosecution in the introductory paragraphs of his petition.  Berry, however, asserted only AVexatious Litigants@ as described in [Civil Practice and Remedies Code] Ch. 11,@ in his list of charges and Areserve[d] the right to pursue this charge.  Civil Practice and Remedies Code chapter 11 provides protection for defendants, such as requiring a plaintiff to furnish security if the trial court determines the plaintiff is a vexatious litigant.  See Tex. Civ. Prac. & Rem. Code Ann. ' 11.055 (Vernon 2002).  Berry did not direct the trial court, and does not direct this court, to any case law holding chapter 11 establishes a separate cause of action.

^[4]  Although appellees filed both motions in a single document, they clearly separated the two motions.  See Russo v. Smith Int=l, Inc., 93 S.W.3d 428, 432 n.4  (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (reiterating the caution that a single document containing both motions should clearly delineate the argument and authorities supporting one motion from those supporting the other).

^[5]  The trial court granted appellees= motion for leave to supplement their summary judgment proof with Berry=s responses to their request for disclosure.

^[6]  The docket sheet indicates Berry=s motion to amend and motion for new trial were denied on September 5, 2003.  According to the docket sheet entry, the motion for sanctions was denied as moot.  A docket sheet entry, however, cannot stand as an order or substitute for an entry of record.  See  Utils. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex .App.CDallas 1988, no writ); Harris County Child Welfare Unit v. Caloudas, 590 S.W.2d 596, 598 (Tex. Civ. App.CHouston [1st Dist.] 1979, no writ).

^[7]  We glean these complaints in part  from the legal authority Berry cites in support of his arguments.  Under issue six, Berry also sets out as Afacts@ the absence of motions for special exceptions and findings of facts.  Special exceptions are directed to defects in a party=s pleadings.  See Tex. R. Civ. P. 91.  We do not view appellees as challenging the sufficiency of Berry=s pleadings.  Findings of fact are not proper in a summary judgment.  See Golden v. McNeal, 78 S.W.3d 488, 495 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).

^[8]  For claims attacked on no-evidence grounds, we isolate at least one element on which Berry presented no summary judgment proof.  By not isolating additional elements in this memorandum opinion, we do not mean to imply Berry=s proof supported those elements.

^[9]  Berry also alleged appellees Aensured derogatory entries in applicable credit agencies,@ and referred to entry of Ajudgment from the Harris County Civil Court at Law #3 in my credit account with the Trans Union Credit Reporting Agency located in Chester, Pa, before March 11th, 2003.@  Berry did not provide any documentation of this credit entry in response to appellees= no-evidence summary judgment motion, and does not direct this court to any evidence to support a claim of libel based on this event.

^[10]  A plaintiff=s pleadings generally are not competent summary judgment evidence; however, they may form the basis of summary judgment when the defendant asserts limitations as an affirmative defense.  Cronen v. City of Pasadena, 835 S.W.2d 206, 210 (Tex. App.CHouston [1st Dist.] 1992, no writ), overruled on other grounds by Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (per curiam).

^[11]  Nor could he have.  The Civil Court at Law case terminated in appellees= favor, and the appeal was pending when Berry filed his petition in this case.  See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 208 (Tex. 1996) (holding an underlying civil suit has not terminated in favor of a malicious prosecution plaintiff until the appeals process for that underlying suit has been exhausted).

^[12]  Like appellees in the trial court, we view Berry as having pleaded mental anguish damages, rather than as having pleaded an independent cause of action for intentional infliction of emotional distress.  See Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 63 (Tex. 1998) (holding Aintentional infliction of emotional distress is not available as an independent cause of action unless the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor=s reckless conduct@).

^[13]  In addition to arguing the trial court correctly granted their no-evidence motion for summary judgment, appellees argue in the alternative the trial court erred in overruling their objections to Berry=s summary judgment evidence.  Because of our resolution of Berry=s issues one through six, we do not need to address appellees= cross-point.

^[14]   Senior Justice Joe L. Draughn sitting by assignment.