NUMBER 13-10-00328-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
RICHARD L. DOCKUM, Appellant,
v.
WAL-MART STORES TEXAS, LLC Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
____________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Richard L. Dockum, pro se appellant, filed a premises defect and gross negligence
suit against Wal-Mart Stores Texas, LLC, appellee. Dockum appeals a take-nothing
summary judgment granted in favor of Wal-Mart. By five issues, Dockum argues the trial
court erred by (1) granting Wal-Mart’s traditional motion for summary judgment based on
limitations and other grounds; (2) not granting his motion to compel Wal-Mart to answer
discovery; (3) denying his request for a bench warrant or telephone hearing; (4) denying
his right to sue the builders of ―and all that worked on‖ Wal-Mart’s building; and (5) not
holding that Wal-Mart should have settled this lawsuit. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dockum filed this lawsuit against Wal-Mart in August 2008, seeking to recover $19
million in damages from Wal-Mart for personal injuries he allegedly suffered in July 2003
from a defective roof on a Wal-Mart store in Brownsville, Texas. In his petition, Dockum
alleged he was a customer of the Wal-Mart store and that Wal-Mart was negligent and
grossly negligent in its roof maintenance.
Wal-Mart answered the lawsuit and asserted as an affirmative defense that
Dockum’s suit was barred by the two-year statute of limitations. See TEX. CIV. PRAC. &
REM. CODE ANN. § 16.003(a) (West 2002). Wal-Mart moved for summary judgment on the
basis of limitations and other grounds.1 The trial court granted Wal-Mart’s motion without
stating the reason for its ruling. This appeal followed.2
II. STANDARD OF REVIEW
We review a trial court’s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To obtain a traditional summary judgment, a
1
Wal-Mart also argued in its motion for summary judgment that res judicata and collateral estoppel
barred this lawsuit. Wal-Mart previously obtained a summary judgment against Dockum in federal district
court in a matter which encompassed the same subject matter and alleged injuries as the current action.
The federal court held the claim was barred by limitations. See Dockum v. Wal-Mart Stores Texas, LP, No.
B-06-025, 2006 U.S. Dist. LEXIS 36447 (S.D. Tex. June 2, 2006), aff’d, Dockum v. Wal-Mart Stores Tex.,
LP, 220 Fed. Appx. 335, 2007 U.S. App. LEXIS 5177, 2007 WL 671329 (5th Cir. Mar. 5, 2007).
2
On July 15, 2010, after perfecting this appeal, Dockum filed a motion titled ―Motion for Bond on
Appeal in a Civil Case and a Forma Pauperis to Cover Bond Cost.‖ Dockum’s motion was carried with the
appeal and is hereby dismissed as moot.
2
movant must either negate at least one element of the plaintiff's theory of recovery or
plead and conclusively establish each element of an affirmative defense. See TEX. R. CIV.
P. 166a(c); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the
movant produces sufficient evidence to establish the right to summary judgment, the
nonmovant must present evidence sufficient to raise a fact issue. Centeq Realty, Inc., 899
S.W.2d at 197. We examine the entire record in the light most favorable to the
nonmovant, indulging every reasonable inference in the nonmovant’s favor and resolving
any doubts against the movant. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)
(citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798
(Tex. 2003)).
When the summary judgment motion is based on several different grounds and the
judgment is silent as to the reason for granting the motion, an appellant must show that
each independent ground alleged in the motion is insufficient to support the summary
judgment. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam);
Rogers v. Ricane Enters, Inc., 772 S.W.2d 76, 80 (Tex. 1989).
III. ANALYSIS
A. Appellate Jurisdiction
We first review sua sponte whether the trial court’s judgment is a final, appealable
judgment because it did not dispose of four ―generically identified‖ defendants listed in
Dockum’s original petition. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex.
2004). Appellate courts are obligated to review sua sponte issues affecting their own
jurisdiction. Id.; see also Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812 (Tex. App.—
Corpus Christi 2009, pet. denied).
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A summary judgment may be final, even though it does not dispose of all parties
named in the petition, if the remaining party was never served with citation and did not file
an answer and nothing in the record indicates that the plaintiff ever expected to obtain
service upon the remaining party. See Youngstown Sheet & Tube Co. v. Penn, 363
S.W.2d 230, 232 (Tex. 1962) (describing when failure to obtain service on a defendant
may be treated as a ―discontinuance‖ of suit for purposes of determining finality of
judgment); see also M.O. Dental Lab., 139 S.W.3d at 674–75 (concluding summary
judgment was final when one defendant was unserved and the record showed no intent to
serve the remaining defendant). More specifically, a judgment is final for purposes of
appeal when (1) the judgment expressly disposes of some, but not all defendants; (2) the
only remaining defendants have not been served or answered; and (3) nothing in the
record indicates that the plaintiff ever expected to obtain service on the unserved
defendants. Sondock v. Harris County Appraisal Dist., 231 S.W.3d 65, 67 n.1 (Tex.
App.—Houston [14th Dist.] 2007, no pet.).
In the petition, Dockum generically identified the ―ENGINEERING COMPANY,
ROOFING COMPANY, INSPECTOR OF JOB, [and] CONSTRUCTION COMPANY‖ as
defendants ―to be named‖ in the future. There is no indication in the record that they were
ever specifically identified by name in the lawsuit, that citation was served on any of these
defendants, or that Dockum ever expected to obtain service on these defendants. None of
these defendants answered the lawsuit. Accordingly, we conclude the judgment is final for
purposes of appeal, and that this Court has appellate jurisdiction. See id.
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B. The Trial Court’s Summary Judgment Ruling
By his first issue, Dockum argues the trial court erred by granting Wal-Mart’s motion
for summary judgment. On appeal, Dockum emphasizes that Wal-Mart was not entitled to
summary judgment on the basis of res judicata and collateral estoppel. Dockum, however,
does not address in any depth Wal-Mart’s summary-judgment argument made in the trial
court that it was entitled to judgment on the basis of limitations.3
A defendant seeking summary judgment based on limitations must prove when the
cause of action accrued and, if pleaded by the non-movant, must negate the applicability
of the discovery rule. In re Estate of Herring, 970 S.W.2d 583, 586 (Tex. App.—Corpus
Christi 1998, no pet.); Seibert v. General Motors Corp., 853 S.W.2d 773, 775 (Tex. App.—
Houston [14th Dist.] 1993, no writ). A plaintiff's pleadings generally are not competent
summary judgment evidence; however, they may form the basis of summary judgment
when the defendant asserts limitations as an affirmative defense. Cronen v. City of
Pasadena, 835 S.W.2d 206, 210 (Tex. App.—Houston [1st Dist.] 1992, no writ), overruled
on other grounds, Lewis v. Blake, 876 S.W.2d 314, 315 (Tex.1994) (per curiam); Alice
Roofing & Sheet Metal Works, Inc. v. Halleman, 775 S.W.2d 869, 870–71 (Tex. App.—San
Antonio 1989, no writ).
3
In his trial response, Dockum generally asserts that a ten-year statute of limitations should apply.
TEX. CIV. PRAC. & REM. CODE 16.008, 16.009 (West 2002) (statutes of repose). In his appellate brief,
however, Dockum only makes the following general reference: ―appellant refiled suit when he found … the
owner could be suit [sic] under a 10 year statute of limitations from the time the store first opens.‖
Dockum did not include his ten-year statute of limitation argument as an issue on appeal, and did not
make a clear and concise argument for the contentions made with appropriate citations to applicable statutes
or other legal authority. TEX. R. APP. P. 38.1 (f, i). Moreover, a statute of repose is an affirmative defense and
does not extend an otherwise applicable statute of limitations. TEX. CIV. PRAC. & REM. CODE 16.009 (f) (West
2002); see also Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003) (statutes of repose provide
―absolute protection to certain parties from the burden of indefinite potential liability‖); Styers v. Harris
County, 838 S.W.2d 955, 956–57 (Tex. App.—Houston [14th Dist.] 1992, writ ref’d) (explaining that a statute
of repose does not extend an otherwise applicable statute of limitations).
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When, as in this case, summary judgment is based solely on the plaintiff's petition,
we must accept each allegation in the petition as true. Am. Nat'l Ins. Co. v. Int'l Bus.
Mach. Corp., 933 S.W.2d 685, 686 (Tex. App.—San Antonio 1996, writ denied); Cronen,
835 S.W.2d at 210. A party may plead itself out of court by pleading facts that affirmatively
negate its cause of action. Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625, 632
(Tex. App.—Houston [14th Dist.] 1997, pet. denied); Halleman, 775 S.W.2d at 870. If the
pleading on its face conclusively shows the moving party is entitled to summary judgment
based on limitations, the motion will be granted. Cronen, 835 S.W.2d at 210; Halleman,
775 S.W.2d at 870–71. The statute of limitations for a personal injury cause of action is
two years from the day the cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. §
16.003(a) (West 2002). Generally, a cause of action accrues when the wrongful act effects
an injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990).
Accepting Dockum's pleadings as true, Dockum sustained his injury on Wal-Mart’s
premises on July 5, 2003; therefore, the statute of limitations expired before August 25,
2008, when Dockum filed this lawsuit. Dockum did not plead the discovery rule and does
not argue it on appeal. We conclude the trial court correctly granted Wal-Mart’s motion for
summary judgment on limitations grounds. Dockum’s first issue on appeal is overruled.
C. Dockum’s Motion to Compel Wal-Mart to Answer Discovery
By his second issue, Dockum complains Wal-Mart never answered his discovery
requests, and argues the trial court erred by not compelling Wal-Mart to answer. To
preserve a complaint for appellate review, a party must show that he timely made the
complaint to the trial court. TEX. R. APP. P. 33.1.
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Dockum waived this complaint because he failed to timely raise it in the trial court.
The trial court signed the summary judgment against Dockum on January 8, 2009.
Dockum, however, did not file his motion to compel Wal-Mart to answer discovery until
August 6, 2009. Inasmuch as Dockum did not file a motion for new trial or any other post-
judgment motion within thirty days after the judgment was signed, the trial court’s plenary
power over the case expired thirty days after the summary judgment was signed.4 See
TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310
(Tex. 2000). Therefore, the trial court was without authority to address Dockum’s motion.
See TEX. R. APP. P. 33.1; Clewis v. Safeco, Ins. Co., 287 S.W.3d 197, 203 (Tex. App.—
Fort Worth 2009, no pet.) (―Proceedings related to the trial court’s judgment after its
plenary power has expired are generally beyond the trial court’s jurisdiction.‖). Dockum’s
second issue is overruled.
D. Dockum’s Third, Fourth, and Fifth Issues on Appeal
Dockum has waived any appellate review of his third, fourth, and fifth issues by not
supporting these issues with citation to the record or legal authority. See TEX. R. APP. P.
38.1(i). Bare assertions of error without proper citation to the record or to authority waive
error. See Kansas City S. v. Port of Corpus Christi Auth., 305 S.W.3d 296, 303 (Tex.
App.—Corpus Christi 2009, pet. denied); Goodenberger v. Ellis, 343 S.W.3d 536, 539–40
(Tex. App.—Dallas 2011, pet. denied); see also Mansfield State Bank v. Cohn, 573
S.W.2d 181, 185 (Tex. 1978) (holding pro se litigants must comply with procedures
4
The clerk’s record does not include a motion for new trial. The clerk’s record shows the only
motion Dockum filed within thirty days of the signing of the summary judgment was titled ―Motion to Appeal
the Granting of Summary Judgment.‖ In that motion, Dockum requested permission to appeal the summary
judgment. However, he did not seek to relitigate his case in the trial court or request any modification of the
judgment. Because Dockum did not include a request to relitigate the case in his motion, this motion was not
a motion for new trial. See TEX. R. CIV. P. 320, 329b; Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.—Houston
[1st Dist.] 2006, no pet.).
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established by rules notwithstanding the fact that they are not licensed attorneys). Issues
three through five were inadequately briefed, and as a result, Dockum has waived error, if
any. We overrule issues three through five.
IV. CONCLUSION
We affirm the trial court’s judgment.
_______________________________
GREGORY T. PERKES
Justice
Delivered and filed the
26th day of January, 2012.
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