Scott Markwardt v. Ann Duncan, Individually and D/B/A Duncan Trucking and David Elmer Duncan

• Court: Court of Appeals of Texas
• Decided: September 22, 2004
• Docket: 10-03-00030-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-03-00030-CV

Scott Markwardt,

                                                                      Appellant

 v.

Ann Duncan, Individually

and d/b/a Duncan Trucking

and David Elmer Duncan,

                                                                      Appellees

From the 87th District Court

Freestone County, Texas

Trial Court # 01-230-B

MEMORANDUM  Opinion

          Appellant filed a motion to dismiss the appeal in the above cause.  It complies with the appropriate appellate rule.  Tex. R. App. P. 42.1(a)(1).

          The appeal is dismissed, and costs are taxed against Appellant.  Tex. R. App. P. 42.1(d).

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed September 22, 2004

[CV06]

activity. Id. at 550. There is no evidence in the record on whether or not there were similar thefts or other criminal acts in the area. As a result, Crowder Investments did not meet its burden to conclusively negate the foreseeability element of negligence. We sustain the first two points.

      The Stephenses' third point is that the court deprived them of due process, under both the United States and Texas Constitutions, by granting the summary judgment. In their fourth point, they assert that the court also violated the open-courts provision of the Texas Constitution. Because they did not raise these reasons for why the summary judgment should be denied in their response to the motion, their third and fourth points are not properly before us on appeal. See State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). A party cannot raise new reasons why a summary judgment should be denied for the first time on appeal. City of Houston, 589 S.W.2d at 678. However, if the third and fourth points were properly before us, we would still overrule them because the Stephenses failed to support their claims with argument, authorities, or references to the record. See Baucom v. Crews, 819 S.W.2d 628, 631 (Tex. App.—Waco 1991, no writ). We overrule points three and four.

      We reverse the judgment and remand the cause for trial.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed November 18, 1992

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