Texas SC: Pro se defendant should have responded to summary judgment motion

Steve Korris Sep. 25, 2008, 4:53am

AUSTIN – Judges often overlook procedural errors of parties who act as their own lawyers, but the Texas Supreme Court won't let judges toss procedure out the window.

The high court ourt on Aug. 29 reversed Tenth District appeals judges in Waco who stamped their approval on sketchy documents from "pro se" civil defendant Kenneth Weaver.

"Pro se" means "for self" in Latin.

Weaver must now pay a debt he owes on a Unifund credit card.

When Unifund CCR Partners sued in McClennan County district court to recover the debt, the company attached requests for disclosure and admissions.

Weaver filed with the court an answer to the suit and responses to Unifund's requests. Each response cited a four year statute of limitations on debt collections.

Unifund moved for summary judgment, claiming Weaver didn't respond to the suit.

Unifund argued that by failing to respond, he admitted the facts it set out.

Weaver didn't respond to the motion, and District Judge Michael Gassaway granted it.

Weaver then filed a post-judgment motion opposing summary judgment, asserting that he properly served Unifund by filing with the court.

Gassaway rejected his argument, but on appeal the Tenth District accepted it and reversed Gassaway's judgment.

The Tenth District construed his responses as objections and declared them valid.

Unifund appealed, and the Supreme Court found nothing in the record showing that Weaver served his responses on the company.

In an unsigned opinion, the justices held that a party who fails to respond in writing to a summary judgment motion waives the right to raise any argument after judgment.

The court says Weaver knew of his mistake before judgment but because he did not respond to Unifund's motion, he waived his right to raise the issue after judgment.

"The second reason we reverse is that Weaver's responses, even if they could be considered, are not proper objections to the requests," the court wrote

They added that a valid objection must specifically state its legal or factual basis and the extent to which a party refuses to comply with a request.

"A limitations defense is an affirmative defense, which is in the nature of a confession and avoidance," they wrote. "As such, it must be asserted in a pleading."

Brian Staley represented Unifund.

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