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NUMBER 13-00-783-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
RUFINO SALINAS MESTIZA, Appellant,
v.
YOLANDA DE LEON AND DAVID GARZA, Appellees.
On appeal from the 357th District Court
of Cameron County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Yañez and Castillo
Opinion by Justice Castillo
Appellant Rufino Salinas Mestiza appeals from a summary judgment entered against him in a suit brought to compel the appellees to exhume the body of Maria Quirino, the woman he was convicted of murdering. We affirm.
Factual Summary
The body of Maria Quirino was found in Cameron County and, following an autopsy, Mestiza was convicted by a jury of her murder.[1] Mestiza appealed, claiming, among his sixteen points of error, that the body was improperly identified, and the autopsy failed to corroborate the cause of death. This Court affirmed the conviction. Mestiza v. State, 923 S.W.2d 720 (Tex. App.BCorpus Christi 1996, no pet.).
Subsequently, Mestiza brought this civil action, titled APetition for Declaratory Judgement,@ seeking to compel David Garza, in his official capacity as Cameron County Justice of the Peace, to exhume Quirino=s body and reopen an inquest into the identity of the body and the cause of death. Yolanda De Leon, in her official capacity as Cameron County District Attorney, was also named by appellant as a defendant in this case. De Leon brought a motion to dismiss, alleging several grounds for dismissal, including: that appellant had failed to state a cause of action upon which relief could be granted, that appellant=s action was barred by claim and issue preclusion, that he had no standing to request an exhumation of the body, that appellant improperly included De Leon as a party, and that Mestiza failed to include Quirino=s family members as necessary parties. The trial court granted that motion and dismissed the case. We reversed the trial court order dismissing the case, and remanded. Mestiza v. De Leon, 8 S.W.3d 770 (Tex. App.BCorpus Christi 1999, no pet.). On remand, De Leon moved for no-evidence summary judgment on the basis that there was no evidence that De Leon was a proper party to this case, that there was no evidence that there was an abuse of discretion by appellees, and that there was no evidence produced by Mestiza to raise a fact issue as to the cause of Maria Quirino=s death or the identity of the body found. The trial court granted summary judgment for De Leon. In three issues presented, Mestiza argues that the trial court erred in failing to appoint him counsel, erred in failing to advance to discovery, and erred in granting the motion for summary judgment.
Summary Judgment Standard
In his third issue, Mestiza argues that the trial court erred in granting summary judgment against him. De Leon moved for summary judgment under several grounds, encompassing both Texas Rule of Civil Procedure 166a(c) (traditional summary judgment) and Texas Rule of Civil Procedure 166a(i) (no-evidence summary judgment). Tex. R. Civ. P. 166a(c); Tex R. Civ. P. 166a(i). The trial court did not specify on which grounds the summary judgment was granted. If a summary judgment order issued by the trial court does not specify the ground or grounds relied upon for that ruling, it will be upheld if any of the grounds in the summary judgment motion can be sustained. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.BCorpus Christi 1995, writ denied).
In a traditional summary judgment under Texas Rule of Civil Procedure 166a(c), the movant has the burden of showing that there is no genuine issue of material fact and is entitled to judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. Id. Evidence favoring the movant=s position will not be considered unless it is uncontradicted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). A defendant=s motion for summary judgment must disprove at least one essential element of each of the plaintiff=s causes of action, or establish all the elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Ford v. City State Bank of Palacios, 44 S.W.3d 121, 127 (Tex. App.BCorpus Christi 2001, no pet.).
Under a no-evidence summary judgment, the movant asserts that there is no evidence of one or more essential elements of the nonmovant=s claims upon which the nonmovant would bear the burden of proof at trial. Tex. R. Civ. P. 166a(i); General Mills Rest., Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.BDallas 2000, no pet.). The burden then shifts to the respondent to present enough evidence to raise a genuine fact issue on the challenged elements. See Tex. R. Civ. P. 166a. The trial court will be reversed if the respondent brought forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Zapata v. The Children=s Clinic, 997 S.W.2d 745, 747 (Tex. App.BCorpus Christi 1999, pet. denied). More than a scintilla exists when the evidence would permit reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
De Leon=s third ground for summary judgment states that there was no evidence presented demonstrating that Garza in his capacity as justice of the peace abused his discretion in refusing to reopen an inquest into Quirino=s death. We agree.
Texas Code of Criminal Procedure article 49.041 states that a justice of the peace Amay reopen an inquest if, based on information provided by a credible person or facts within the knowledge of the justice of the peace, the justice of the peace determines that reopening the inquest may reveal a different cause or different circumstances of death.@ Tex. Code Crim. Proc. Ann. art. 49.041 (Vernon Supp. 2002) (emphasis added). The justice of the peace is therefore vested with the power to determine whether such a reopening should occur, and this decision is subject to an abuse of discretion standard. Id.; Mestiza, 8 S.W.3d at 772. We cannot say in this case that Mestiza presented any evidence indicating that the justice of the peace abused his discretion in refusing to reopen the inquest. In response to the motion for summary judgment, appellant presented no summary judgment evidence on his behalf. He presented no witnesses testifying that the body was misidentified. Instead, he attached only a copy of this Court=s previous decision in this case, and argued that the motion was Arehashing@ issues previously rejected by this Court. Further, he argued that the ADefendants and Joe Valle have relevant information and documentation in their possession which they have refused to come forward with so that this case can be fairly resolved on its merits.@ Mestiza repeats this argument in his brief, stating that the appellees Aabused the discovery process by failing / refusing to come forward with pertinent information,@ and then Ahid[ing] behind the tree and claim no genuine issue of fact exists.@
Mestiza argues that De Leon and Garza should not have been awarded summary judgment after failing to adequately respond to his discovery requests, citing Tempay, Inc. v. TNT Concrete and Constr., 37 S.W.3d 517, 521 (Tex. App.BAustin 2001, pet. denied) and Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.BHouston [14th Dist.] 2000, pet. denied).[2] We disagree.
Both Tempay and Specialty Retailers stand for the proposition that the trial court must not award a no-evidence summary judgment prior to allowing adequate time for discovery. Tempay, 37 S.W.3d at 521-22; Specialty Retailers, 29 S.W.3d at 145. In considering whether adequate time for discovery has elapsed, the trial court must examine:
(1) the nature of the case; (2) the nature of evidence necessary to controvert the no-evidence motion; (3) the length of time the case was active; (4) the amount of time the no-evidence motion had been on file; (5) whether the movant had requested stricter deadlines for discovery; (6) the amount of discovery already taken place; and (7) whether the discovery deadlines in place were specific or vague.
Martinez v. City of San Antonio, 40 S.W.3d 587, 591 (Tex. App.BSan Antonio 2001, pet. denied) (citing Specialty Retailers, 29 S.W.3d at 145 and Dickson Constr. v. Fid. & Deposit Co., 5 S.W.3d 353, 356 (Tex. App.BTexarkana 1999, pet. denied)). In the present case, appellant had, at the very least, from this Court=s December 19, 1999 order remanding the case to the trial court until the summary judgment dismissal on March 13, 2001 to conduct discovery both against the parties he sued and to request discovery of non-parties. Further, appellants are presumed to have duly investigated their case before filing suit. See McAllister v. Samuels, 857 S.W.2d 768, 773 (Tex. App.BHouston [14th Dist.] 1993, no writ). Appellant had the opportunity during his criminal trial, and prior to filing this civil action, to investigate the identity of the body that was identified as Quirino=s and develop an alternative explanation for her means of death.
Appellant=s third issue is overruled.
Remaining Issues Waived
In his first issue presented, Mestiza argues that the trial court erred in failing to issue him a court-appointed attorney to assist him with his civil case. In his second issue presented, Mestiza argues that the trial court erred in failing to compel discovery against De Leon and Garza. Mestiza filed a motion for appointment of counsel on April 28, 2000, and filed a motion to compel discovery against De Leon and Garza on June 21, 2000. However, he failed to secure a ruling on either of these motions.[3] Accordingly, both Mestiza=s first and second issues are waived. See Tex R. App. P. 33.1(a).[4]
Conclusion
Because we have overruled Mestiza=s third issue and have found his remaining issues waived, we affirm the judgment of the trial court.
ERRLINDA CASTILLO
Justice
Chief Justice Valdez not participating.
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 13th day of June, 2002.
1 Mestiza confessed to suffocating Quirino with a pillow. Her semi-nude body was found wrapped in a blanket in a rural field in Cameron County, where it had considerably decomposed. Her sister and a co-worker both positively identified the body as that of Quirino. Natural causes of death were ruled out.
2 Mestiza requested information from De Leon in this case in the form of a document entitled AFirst Set of Interrogatories and Request for Production of Documents and Things to Defendant,@ filed on August 11, 1998. De Leon objected to these requests as overbroad, irrelevant, and additionally claimed privilege as to several of the documents, seeking a protective order staying discovery requests to the defendants. Following this Court=s remand, Mestiza refiled the discovery requests on February 29, 2000, adding Garza=s name to De Leon=s, and asked that the trial court lift the protective order. Mestiza also served discovery requests on Joe Valle, his attorney in the criminal case. Mestiza then filed a motion to compel discovery against De Leon and Garza on June 21, 2000. The trial court set Mestiza=s discovery motions for a hearing but did not rule on them prior to granting the motion for summary judgment. Mestiza does not raise a point on appeal challenging the trial court=s failure to rule on his discovery motions.
3 Trial courts are required to rule on a motion within a reasonable time. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.BSan Antonio 1997, orig. proceeding). Following his June 21, 2000, motion to compel discovery, and prior to the trial court=s disposition of his case by means of summary judgment on March 13, 2001, Mestiza had the option to request mandamus relief from this Court requiring that the trial court rule on his motion. See In re Bonds, 57 S.W.3d 456, 457 (Tex. App.BSan Antonio 2001, orig. proceeding). Although he knew that De Leon had filed for summary judgment on August 1, 2000, and was later given notice by trial court order dated January 24, 2001, that the court had set a March 8, 2001, submission date for the summary judgment motion, Mestiza failed to take advantage of the mandamus opportunity during the seven month period in which the motion for summary judgment was pending.
4 We note that while appointment of counsel for a civil case is available to an indigent party under Texas Government Code section 24.016, the appointment of counsel to such a party is discretionary on the part of the trial court. Counsel is generally only appointed in a civil case where exceptional circumstances are presented. Tex. Gov=t Code Ann. '24.016 (Vernon 1988); see Coleman v. Lynaugh, 934 S.W.2d 837, 839 (Tex. App.BHouston [1st Dist.] 1996, no writ).