Rosser B. Melton, Jr. v. Wells Fargo Bank, N.A., and Thomas H. Elliott

• Court: Court of Appeals of Texas
• Decided: July 19, 2012
• Docket: 02-11-00512-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00512-CV

ROSSER B. MELTON, JR. APPELLANT

V.

WELLS FARGO BANK, N.A., AND APPELLEES THOMAS H. ELLIOTT

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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

MEMORANDUM OPINION1

In seven issues, Appellant Rosser B. Melton, Jr., pro se, appeals the trial

court’s order granting summary judgment in favor of Appellees Wells Fargo

Bank, N.A., and Thomas H. Elliott. We will affirm.

In 1997, First State Bank of Texas issued a certificate of deposit to

“LIBERTY TRUST” and “FRANCES COUCH MELTON TRUSTEE.” In 2008, 1 See Tex. R. App. P. 47.4. Wells Fargo2 paid the certificate of deposit by issuing a cashier’s check made

payable to “LIBERTY TRUST” and “FRANCES COUCH MELTON TTEE.”

Appellant asked Wells Fargo to cash the check, but it refused to do so because

Appellant was not a named payee on the check, nor did he demonstrate that he

was authorized to act on behalf of the payees. Appellant later sued Appellees for

fraud and conversion. Appellees filed a combined traditional and no-evidence

motion for summary judgment challenging each of Appellant’s claims, and the

trial court granted the motion.

In his sixth issue, Appellant argues that the trial court erred by granting

Appellees’ no-evidence motion for summary judgment.3 After an adequate time

for discovery, the party without the burden of proof may, without presenting

evidence, move for summary judgment on the ground that there is no evidence to

support an essential element of the nonmovant’s claim or defense. Tex. R. Civ.

P. 166a(i). The trial court must grant the motion unless the nonmovant produces

summary judgment evidence that raises a genuine issue of material fact. See id.

& cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

2 First State Bank of Texas merged with Wells Fargo in 2002. 3 When a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial court’s judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the appellant failed to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether the appellee’s summary judgment proof satisfied the less stringent rule 166a(c) burden. Id.

2 Generally, pleadings are not competent summary judgment evidence.

Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.

1995). A response to a motion for summary judgment is a pleading and,

therefore, cannot constitute summary judgment evidence. See Nicholson v.

Mem’l Hosp. Sys., 722 S.W.2d 746, 749 (Tex. App.—Houston [14th Dist.] 1986,

writ ref’d n.r.e.); see also Watson v. Frost Nat’l Bank, 139 S.W.3d 118, 119 (Tex.

App.—Texarkana 2004, no pet.); Smith v. Hennessey & Assocs., 103 S.W.3d

567, 570 (Tex. App.—San Antonio 2003, no pet.).

Here, Appellant filed a response to Appellees’ motion for summary

judgment, but he did not attach any evidence in support of the response, nor did

he direct the trial court to any evidence located elsewhere in the record, including

the evidence that Appellees attached to their motion for summary judgment.

Because Appellant’s arguments contained in his response are not summary

judgment evidence, he did not meet his burden to produce evidence raising a

genuine issue of material fact as to any of the elements of his claims challenged

by Appellees. See Tex. R. Civ. P. 166a(i). We hold that the trial court did not err

by granting Appellees’ no-evidence motion for summary judgment on each of

Appellant’s claims. See, e.g., Watson, 139 S.W.3d at 119 (holding that trial court

was required to grant summary judgment because appellant did not support his

response with any evidence); see Wass v. Farmers Tex. Cnty. Mut. Ins. Co.,

Nos. 02-05-00036-CV, 02-05-00124-CV, 2006 WL 1281037, at *2 (Tex. App.—

3 Fort Worth May 11, 2006, no pet.) (mem. op.) (overruling party’s issues

challenging summary judgment because party “failed to produce any summary

judgment evidence in his response”); Sias v. Zenith Ins. Co., No. 08-02-00371-

CV, 2003 WL 21197046, at *3–5 (Tex. App.—El Paso May 22, 2003, pet. denied)

(holding that trial court properly granted no-evidence motion for summary

judgment because appellant failed to attach any summary judgment evidence to

his response), cert. denied, 540 U.S. 1124 (2004). We overrule Appellant’s sixth

issue. Having determined that the trial court properly granted Appellees

summary judgment on no-evidence grounds, we need not address Appellant’s

fifth issue arguing that the trial court erred by granting summary judgment on

traditional grounds. See Tex. R. App. P. 47.1.; Ford Motor Co., 135 S.W.3d at

600.

In his first, second, third, fourth, and seventh issues, Appellant argues that

the trial court violated his right to a jury trial by granting summary judgment, that

the trial court was biased against him because he is pro se, that the trial court

erred by not holding a hearing on Appellees’ motion for summary judgment, and

that remand is necessary because Appellees attached an affidavit to their motion

for summary judgment. Appellant failed to preserve these issues for appellate

review because he did not raise them in the trial court. See Tex. R. App. P.

33.1(a); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.

1979) (reasoning that grounds opposing summary judgment are waived if not

4 raised in the trial court); see also Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

222 (Tex. 2002) (holding that nonmovant waived open courts argument by failing

to raise it in response to motion for summary judgment). We overrule Appellant’s

first, second, third, fourth, and seventh issues.

Having overruled Appellant’s dispositive issues, we affirm the trial court’s

order granting Appellees summary judgment.

PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and GARDNER, J.

DELIVERED: July 19, 2012