Enrique Rodriguez v. Dionne S. Press

• Court: Court of Appeals of Texas
• Decided: December 17, 2009
• Docket: 01-08-00326-CV
• Status: Published

Opinion

Opinion issued December 17, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00326-CV

ENRIQUE RODRIGUEZ, Appellant

V.

DIONNE S. PRESS, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2007‑15455‑A

MEMORANDUM OPINION

Appellant, Enrique Rodriguez, and his wife, Anabel Reyna Rodriguez, sued appellant’s former lawyer, Dionne S. Press, for alleged negligence, breach of contract, violations of the Deceptive Trade Practices‑Consumer Protection Act, and other theories.  See Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2002 & Supp. 2009) (DTPA).  The trial court rendered a take‑nothing summary judgment based on appellee Press’s motion for summary judgment.  Appellant brings three points of error, alleging the trial court erred in (1) hearing the motion for summary judgment outside the time periods set out in the court’s docket control order, (2) relying on the doctrine set forth in Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995),[1] to grant Press’s motion for summary judgment, and (3) denying appellant’s motion for summary judgment based on what appellant claims is false and misleading summary‑judgment evidence filed by Press.  We affirm.

Background

          Appellant pleaded guilty to possession with intent to deliver cocaine weighing 400 grams or more, and the trial court assessed punishment at 25 years’ imprisonment and a $10,000 fine.  See State v. Rodriguez, No. 880447 (337th Dist. Ct., Harris County, Tex. May 20, 2002).  Appellant’s lawyers at the criminal trial were Paul Looney and Roberto S. Rivera.  Appellant hired Joe Roach to file a postconviction petition for writ of habeas corpus, and Roach hired appellee Press to assist him in preparing and filing the writ.  The Court of Criminal Appeals denied the petition.  See In re Rodriguez, No. WR‑64,368‑01 (Tex. Crim. App. May 3, 2006).  In 2007, appellant and his wife sued Looney, Rivera, Roach, and Press.

          On October 15, 2007, the trial court signed (1) an interlocutory order denying appellant’s motion for summary judgment, (2) an interlocutory order denying appellant’s wife’s motion for summary judgment, and (3) an interlocutory order granting Press’s motion for summary judgment and rendering judgment that appellant and his wife take nothing against Press.  On April 7, 2008, the trial court granted Press’s motion to sever appellant and his wife’s claims against Press, thus rendering a final judgment.  Only appellant filed a notice of appeal.[2]

          Appellant made a general request for items to be included in the clerk’s record (“respectfully request that this Court Clerk, prepare and forward all records pertaining to defendant Dionne S. Press to the Court of Appeals”).  Texas Rule of Appellate Procedure 34.5(b)(2) requires that a party’s written designation of items to be included in the clerk’s record specifically describe each item so the clerk can readily identify it.  Rule 34.5(b)(2) instructs the clerk to disregard a general designation, such as one for “all papers filed in the case.”  Because appellant did not make a specific written designation, the only items the trial‑court clerk was required to include in the clerk’s records were those listed in Texas Rule of Appellate Procedure 34.5(a).  The items missing from this list were the three October 15, 2007 interlocutory orders that along with the April 7, 2008 severance order form the trial court’s final judgment.  Accordingly, this Court ordered the trial‑court clerk to prepare, certify, and file a supplemental record containing the three October 15, 2007 interlocutory orders.  See Tex. R. App. P. 34.5(c)(1).  Appellant did not make a written designation specifying that the following items be included in the clerk’s record: (1) the trial court’s docket control order; (2) the motions for summary judgment filed by appellant, appellant’s wife, and Press; and (3) any responses to the motions for summary judgment.  Those items are not a part of the record in this appeal.

Discussion

          In point of error one, appellant argues the trial court erred in hearing the motion for summary judgment outside of the time periods set out in the court’s docket control order.  We note that the docket control order is not in the clerk’s record.  Even if the order were a part of the record, appellant did not preserve his alleged error in the trial court as required by Texas Rule of Appellate Procedure 33.1(a) by bringing this matter to the attention of the trial court and obtaining an adverse ruling.

          We overrule point one.

          In points of error two and three, appellant contends the trial court erred in granting Press’s motion for summary judgment and denying his motion.  We cannot reach the merits of these points because the motions and any responses are not in the clerk’s record.  See Mallios v. Standard Ins. Co., 237 S.W.3d 778, 782–83 & n.6 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), cert. denied, 129 S. Ct. 56 (2008); Atchison v. Weingarten Realty Mgmt. Co., 916 S.W.2d 74, 77 (Tex. App.—Houston [1st Dist.] 1996, no pet.).

          We overrule points two and three.

Conclusion

          We affirm the judgment of the trial court.

                                                          Michael Massengale

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

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[1]               The Peeler doctrine holds that unless a convict’s criminal conviction has been overturned, the cause in fact for any injury flowing from the conviction is the convict’s illegal conduct, rather than the negligence or malfeasance by the convict’s lawyer.  See Peeler, 909 S.W.2d at 498.

[2]               Appellant filed an amended pro se notice of appeal that purported to list his wife as an appellant.  This Court’s October 15, 2008 order allowing the filing of the amended notice of appeal noted that appellant’s wife did not sign the notice of appeal.  Appellant cannot represent his wife unless he is a member of the State Bar of Texas or otherwise qualifies for the limited practice of law.  See Tex. Gov’t Code Ann. § 81.102 (Vernon 2005); Magaha v. Holmes, 886 S.W.2d 447, 448 (Tex. App.—Houston [1st Dist.] 1994, no writ).  Neither appellant nor his wife has responded to our October 15, 2008 order by appellant claiming he can practice law or appellant’s wife filing her own pro se notice of appeal.