Affirmed and Memorandum Opinion filed June 3, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00166-CV
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MICHAEL GLEASON, Appellant
V.
JOHNNY ISBELL, AS MAYOR OF THE CITY OF PASADENA (ACITY@), TEXAS, AND INDIVIDUALLY; FOY LEE CLARK, AS CITY ATTORNEY AND INDIVIDUALLY; ANDY HELMS, AS DIRECTOR OF FINANCE AND PURCHASING AND CHIEF OF STAFF OF THE CITY AND INDIVIDUALLY; DAN WEATHERS, AS MUNICIPAL JUDGE AND INDIVIDUALLY; JOHN S. SCHNEIDER, JR., AS ASSISTANT CITY ATTORNEY AND INDIVIDUALLY; J. MICHAEL COMAN, AS ASSISTANT CITY ATTORNEY AND INDIVIDUALLY; GENE L. LOCKE, AS ATTORNEY FOR GENE AIGGY@ GARISON, JOHNNY ISBELL, LYNNE SUMMERS, AND CITY COUNCIL, AND INDIVIDUALLY; LYNNE SUMMERS, AS CITY SECRETARY AND INDIVIDUALLY; THE CITY; THAD GINN, AS HEALTH DEPARTMENT DIRECTOR OF THE CITY AND INDIVIDUALLY; JEFF GABBERT, AS BUILDING OFFICIAL OF THE CITY AND INDIVIDUALLY; E.C. SUMMERS, AS MAINTENANCE DIRECTOR OF THE CITY AND INDIVIDUALLY; TOMMY SHANE, AS CHIEF OF POLICE OF THE CITY AND INDIVIDUALLY; GENE AIGGY@ GARISON, AS COUNCILMAN FOR CITY COUNCIL DISTRICT AD@ AND INDIVIDUALLY; BRUCE K. WALTERS, AS CITY COUNCILMAN AND INDIVIDUALLY; RUSTY CAMPBELL, AS HEALTH AND BUILDING INSPECTOR FOR THE CITY AND INDIVIDUALLY; GARY E. WORSTELL, AS PRESIDENT OF PASADENA FURNITURE LIQUIDATORS AND INDIVIDUALLY; AND STACY SCOTT, AS POLICE OFFICER FOR THE CITY AND INDIVIDUALLY; Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 01-04396
M E M O R A N D U M O P I N I O N
Appellant Michael Gleason appeals from the trial court=s November 4, 2002 order granting summary judgment in favor of appellees Johnny Isbell, et al.[1] on all claims. This case arises from a dispute concerning the removal of appellant=s seven junked vehicles from his property under the authority of a Municipal Court order obtained by the City. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.
The Issues
Appellant raises five issues in this appeal,[2] claiming that the trial court erred (1) in denying his request for a continuance to obtain more time for discovery, (2) in granting appellees= summary judgment motion, (3) in refusing to grant his no-evidence motion for partial summary judgment, and (4) in excluding from evidence his untimely filed affidavits prior to its consideration of appellees= motion for summary judgment.
Request for Continuance
In his first issue, appellant argues that the trial court erred in denying his request for continuance to obtain more time for discovery. Rule 166a(g) of the Texas Rules of Civil Procedure provides that when a party asserts that he cannot present by affidavit facts essential to justify his opposition to an adverse party=s motion for summary judgment, the court may refuse the application for judgment, order a continuance to permit affidavits to be obtained or depositions to be taken, Aor may make such other order as is just@ (emphasis added). A request for continuance pursuant to Rule 166a(g) is therefore a matter well within the trial court=s discretion, and the trial court=s ruling will not be disturbed on appeal absent an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).
In the summary judgment context, it is generally not an abuse of discretion to deny a motion for continuance if the party moving for a continuance has received 21 days= notice of the hearing as required by Rule 166a(c). Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). A party seeking more time to oppose a summary judgment motion must file an affidavit which describes the evidence sought, explains its materiality, and shows the due diligence used to obtain the evidence. See Tex. R. Civ. P. 166a(g), 251, and 252; MacFadyen, 93 S.W.3d at 310. The affidavit must show why the continuance is necessary; conclusory allegations are not sufficient. See id.
In the present case, appellant has failed to meet the burden imposed by the Rules of Civil Procedure and MacFadyen. See id. It is undisputed that appellant had far more than 21 days= notice of the summary judgment hearing. Appellant even acknowledges in his own motion that on July 15, 2002, the trial court set the hearing date for September 30 of that year, and then even later reset the hearing date to October 14. Moreover, appellant explains that further discovery is necessarily material only based on his unsupported assertion that oral depositions of certain appellees would impeach the testimony they had already submitted through affidavits. Under Rule 166a(c) of the Rules of Civil Procedure, the trial court was entitled to base summary judgment on evidence that is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Appellant=s explanation is inadequate to demonstrate abuse of discretion. For these reasons, we find that the trial court did not abuse its discretion in denying appellant=s request for continuance. Accordingly, appellant=s first issue is overruled.
Proprietary Functions
In his second issue, appellant argues that the trial court erred in granting appellees= summary judgment motion based on governmental immunity because the City=s seizure of his junked vehicles was an exercise of its proprietary, and not its governmental, functions. Therefore, he argues, appellees may be held liable for their acts in furtherance of those functions. When reviewing a summary judgment, the court takes as true all evidence favorable to the nonmovant and indulges every reasonable inference and resolves any doubts in the nonmovant=s favor. Limestone Products Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002).
The City has established certain procedures governing the abatement of a public nuisance. See Pasadena, Tex., Code of Ordinances ch. 20, art. IV, ' 20-75 (2003). Under section 20-73(a), a junked vehicle[3] (or part thereof) may constitute a public nuisance:
A junked vehicle or a part of a junked vehicle that is located in a place where it is visible from a public place or public right-of-way, is detrimental to the safety and welfare of the general public, tends to reduce the value of private property, invites vandalism, creates fire hazards, constitutes an attractive nuisance creating a hazard to the health and safety of minors, and is detrimental to the economic welfare of the city by producing urban blight adverse to the maintenance and continuing development of the city is a public nuisance.
Pasadena, Tex., Code of Ordinances ch. 20, art. IV, ' 20-73(a) (2003). Thus, the abatement of a junked vehicle (or part thereof) necessarily invokes governmental functions, including police and fire protection and control, health and sanitation services, and garbage and solid waste removal, collection, and disposal. See Tex. Civ. Prac. & Rem. Code Ann. '' 101.0215(a)(1), (2), and (6) (Vernon Supp. 2004). This is a governmental activity, not a proprietary function. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215(c) (Vernon Supp. 2004) (AThe proprietary functions of a municipality do not include those governmental activities listed under Subsection (a).@).[4] The trial court therefore did not err in granting appellees= motion for summary judgment on this basis. Accordingly, appellant=s second issue is overruled.
Appellant=s No-Evidence Motion
In his third issue, appellant argues that the trial court erred in denying his no-evidence motion for partial summary judgment. He bases this argument on three grounds: (1) lack of statutory due process and personal jurisdiction over appellant and his property, (2) lack of Asubject matter jurisdiction@ over appellant=s barrel trailer, as well as the contents of his vehicles and Aantique French doors and windows,@ and (3) lack of any evidence presented by appellees contesting the elements of appellant=s alternative claim for damages arising from the use of City-owned motor vehicles.[5] In reviewing a denial of a no-evidence summary judgment motion, we consider all evidence in the light most favorable to the party against whom judgment was rendered and disregard all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
Appellant first contends that appellees= seizure and removal of his vehicles did not comply with statutory due process requirements, and therefore the trial court did not acquire personal jurisdiction over him and his property. However, appellant=s contention plainly ignores the City ordinance provision governing notice for a nuisance on private property, which states: AThe code compliance officer may also attach notice to the vehicle or vehicle part which shall constitute proper notice.@ Pasadena, Tex., Code of Ordinances ch. 20, art. IV, ' 20-75(2)(c) (2003). The City therefore complied with statutory due process requirements.[6] While appellant asserts that this provision does not pass constitutional muster, he cites no authority for such a proposition and in fact makes no further argument in connection with this issue. Consequently, appellant has waived this issue due to inadequate briefing. See Tex. R. App. P. 38.1(h); Fredonia State Bank v. General American Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). Appellant=s first contention is therefore without merit.
Second, appellant contends that the trial court lacked Asubject matter jurisdiction@ over his barrel trailer, as well as the contents of his vehicles and his Aantique French doors and windows.@ We construe this contention as a challenge to the Municipal Court=s authority to order the seizure of his vehicles. As to the barrel trailer, we find that appellant=s contention plainly ignores the City provision stating that a Ajunked vehicle or a part of a junked vehicle@ (emphasis added) may constitute a public nuisance and thus be subject to abatement. See Pasadena, Tex., Code of Ordinances ch. 20, art. IV, ' 20-73(a) (2003). Because the barrel trailer is part of a vehicle, appellant is not entitled to a no-evidence partial summary judgment on this basis.
As to the contents of appellant=s vehicles, appellees produced evidence in the form of affidavits by Rusty Campbell and Richard Carlson that the items identified by appellant as seized during the abatement process were not in fact located inside the vehicles at that time, and appellant=s antique French doors and windows were not in fact removed from the property. Because this evidence supports the trial court=s finding and constitutes more than a scintilla, appellant is not entitled to a no-evidence partial summary judgment on this basis. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). Appellant=s second contention is therefore without merit.
Appellant=s third contention is that Carlson=s testimony by affidavit establishes his alternative claim under the motor vehicle exception to governmental immunity because City wreckers removed his vehicles and the contents therein. Under section 101.021 of the Texas Civil Practice and Remedies Code, a waiver of governmental immunity arises only when a plaintiff alleges that an injury was negligently caused by a governmental employee operating or using a motor-driven vehicle or piece of equipment. LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). Appellant has failed to establish negligence by any City employee in connection with the seizure and removal of his vehicles. Therefore, his third contention is without merit.
We find that the trial court did not err in denying appellant=s no-evidence motion for partial summary judgment. Accordingly, appellant=s third issue is overruled.
Appellees= Summary Judgment Motion
In his fourth issue, appellant argues generally that the trial court erred in granting appellees= motion for summary judgment. In connection with this issue, appellant makes only the following statement: AThis issue is supported by the facts and arguments stated in the record and in this brief.@ We find that the entirety of appellant=s brief fails to identify and explain, with any semblance of coherence, the claims he has brought against appellees (and the specific appellees sought to be held liable for each claim), the elements of each claim, and the relevant facts that support reversal of the trial court=s grant of summary judgment in favor of appellees. It is not our duty to search the voluminous record without sufficient guidance from appellant to determine whether his claim that summary judgment is inappropriate merits reversal. See Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.CHouston [14th Dist.] 2002, no pet.). We therefore find that appellant has waived this issue due to inadequate briefing. See Tex. R. App. P. 38.1(h). Accordingly, we overrule appellant=s fourth issue.
Exclusion of Untimely Affidavits
In his fifth issue, appellant argues that the trial court erred in excluding his untimely filed affidavits prior to its consideration of appellees= motion for summary judgment. We review a trial court=s decision to admit or exclude summary judgment evidence under an abuse of discretion standard. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Id. An appellate court must uphold the trial court=s evidentiary ruling if there is any legitimate basis for the ruling. Id.
Rule 166a(c) of the Rules of Civil Procedure states: AExcept on leave of court, the adverse party, not later than seven days prior to the day of hearing[,] may file and serve opposing affidavits or other written response.@ It is undisputed that appellant filed his original and supplementary affidavits on October 9 and October 11, 2002, respectively, in opposition to appellees= motion for summary judgment. The hearing, of which appellant received timely notice, took place on October 14, 2002. The trial court denied appellant=s motion to file the affidavits late. Because appellant filed his affidavits less than seven days prior to the hearing on appellees= motion for summary judgment and did not obtain leave of court, the trial court did not abuse its discretion in excluding his untimely filed affidavits from consideration. Accordingly, we overrule appellant=s fifth issue.
Other Requested Relief
In his prayer for relief, appellant requests in grounds (1) through (5), (9), and (10) relief related to the trial court=s grant of summary judgment to appellees and its denial of appellant=s no-evidence motion for partial summary judgment. For the reasons stated above, we deny appellant any such relief. Appellant also requests this court to: direct that certain individuals be criminally investigated for their conduct in this case [grounds (6) and (8)], strike the pleadings of certain appellees for Atheir bad faith and fraud@ related to their motion for summary judgment [ground (7)], and refer both counsel for appellees and the City Attorney to the Chief Disciplinary Counsel of the State Bar of Texas for their conduct in this case [ground (8)]. However, appellant failed to cite any authority which would entitle this court to grant him such relief. We therefore deny appellant relief on grounds (6) through (8). See Tex. R. App. P. 38.1(h). Finally, appellant requests that this court award him the costs of this appeal [ground (11)] as well as general and further relief [ground (12)]. Because appellant did not prevail in this appeal, we decline to award him costs and any other general and further relief. See Tex. R. App. P. 43.4. In summary, we deny all relief as requested by appellant in grounds (1) through (12).
Conclusion
The judgment of the trial court is affirmed.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed June 3, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
[1] Appellees include Johnny Isbell, as Mayor of the City of Pasadena (ACity@), Texas, and individually; Foy Lee Clark, as City Attorney and individually; Andy Helms, as Director of Finance and Purchasing and Chief of Staff of the City and individually; Dan Weathers, as Municipal Judge and individually; John S. Schneider, Jr., as Assistant City Attorney and individually; J. Michael Coman, as Assistant City Attorney and individually; Gene L. Locke, as Attorney for Gene AIggy@ Garison, Johnny Isbell, Lynne Summers, and City Council, and individually; Lynne Summers, as City Secretary and individually; the City; Thad Ginn, as Health Department Director of the City and individually; Jeff Gabbert, as Building Official of the City and individually; E.C. Summers, as Maintenance Director of the City and individually; Tommy Shane, as Chief of Police of the City and individually; Gene AIggy@ Garison, as Councilman for City Council District AD@ and individually; Bruce K. Walters, as City Councilman and individually; Rusty Campbell, as Health and Building Inspector for the City and individually; Gary E. Worstell, as President of Pasadena Furniture Liquidators and individually; and Stacy Scott, as Police Officer for the City and individually.
[2] We respectfully decline to consider the six additional issues contained within the appendices to appellant=s brief. See Tex. R. App. P. 38.1(j)(2) (AItems should not be included in the appendix in attempt to avoid the page limits for the brief.@).
[3] Junked vehicle means Aa motor vehicle as defined in Section 1, Chapter 42, General Laws, Acts of the 41st Legislature, 2nd Called Session, 1929 (Article 6701d-11, Vernon=s Texas Civil Statutes): (1) that is inoperative; and (2) that does not have lawfully affixed to it either an unexpired license plate or a valid motor vehicle safety inspection certificate, that is wrecked, dismantled, partially dismantled, or discarded, or that remains inoperable for a continuous period of more than forty-five (45) days.@ Pasadena, Tex., Code of Ordinances ch. 20, art. IV, ' 20-72 (2003).
[4] See generally Christopher D. Jones, Comment, Texas Municipal Liability: An Examination of the State and Federal Causes of Action, 40 Baylor L. Rev. 595, 614-15 (1988). See also Texas River Barges v. City of San Antonio, 21 S.W.3d 347, 357 (Tex. App.CSan Antonio 2000, pet. denied); Hallmark v. City of Fredericksburg, No. 04-99-00519-CV, 2000 WL 730601, at *3 (Tex. App.CSan Antonio 2000, pet. denied).
[5] Appellant also includes the issue of proprietary function and lack of governmental immunity as an additional ground for his argument. However, we addressed this issue in connection with appellant=s second issue and find it unnecessary to repeat our analysis here.
[6] Moreover, Rusty Campbell testified by affidavit that on January 13, 1999, Thad Ginn sent a certified letter to Peter Gleason, the owner of record of the property upon which the junked vehicles were located. The letter stated that if the violation was not corrected within ten days, charges would be filed. On January 25, 1999, Campbell returned to the property and found that the vehicles had not been removed. Later that same day, he filed, for each of the vehicles, a motion to abate a public nuisance in City Municipal Court, which granted the motions the next day. The abatement order was executed on January 28, 1999.