HOUSTON – The 14th Court of Appeals for the State of Texas upheld a summary judgment entered in favor of the state of Texas by the 80th District Court of Harris County in a Deceptive Trade Practices-Consumer Protection Act lawsuit, according to an opinion filed by the appeals court on Feb. 27.
The three-justice appeals court panel said in the opinion written by Justice Martha Hill Jamison that Henry Guerra Sr., Rebecca Gomez Guerra, Michael Guerra, Blanca Guajardo, Esther Gomez Tristan, Linda Ruth Garza and Lauro Garza “challenge the trial court’s grant of summary judgment in favor of appellee, the state of Texas, on the basis that summary judgment was untimely because the parties had not completed alternative dispute resolution before the summary judgment hearing, as they believe was required by the court’s docket control order.”
Although the lower court’s summary judgment was upheld by the appeals court, the opinion said the latter did reject the state’s argument that “we lack jurisdiction over this appeal.”
According to the appeals court opinion, Texas claimed in its Dec. 5, 2014, lawsuit that the defendants “engaged in violations of the Deceptive Trade Practices-Consumer Protection Act and the Assumed Business or Professional Name Act” in their running of an “adult home-schooling center.”
“On Dec. 10, 2015, the trial court signed a docket control order requiring the parties, among other things, to (1) file an agreement for ADR (alternate dispute resolution) or set an objection to ADR by Feb. 29, 2016, (2) complete ADR by May 27, 2016 and (3) have dispositive motions, such as for summary judgment, heard by April 25, 2016,” the appeals court opinion said.
Although Texas met one of the deadlines set in the order by asking the court on March 28, 2016, to enter a judgment in its favor, the appeals court said the district court did not rule on the summary judgment until “nearly two weeks after the deadline for completion of ADR.”
After a new trial was granted to one former defendant and the remaining defendants appealed the summary judgment on Sept. 12, 2016, the opinion said the final version of the summary judgment was signed by the district court on Oct. 7, 2016, “disposing of all claims and all parties.”
The appeals court said it did agreed with Texas’ argument that the “appellants failed to preserve error because they did not respond to the state’s summary judgment motion,” regardless of the alleged ADR requirement.
“Any issues that a non-movant contends avoid summary judgment must be expressed in a written response or answer to the motion,” Jamison wrote in the appeals court opinion.
Since the appellants are claiming that a summary judgment should not have been entered because there had not been a previous attempt at an alternate dispute resolution, the appeals court said “to preserve error on this issue, they were required to raise [that contention] in response to the state’s summary judgment motion, which they failed to do.”
In addition, the appeals court pointed out in its opinion that the lower court “did not render summary judgment until after the parties were required to complete ADR.”