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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