Justin Smith and Richard Heredia v. Directru Assets Management, LLC

Opinion filed August 30, 2019

In The

Eleventh Court of Appeals
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No. 11-17-00249-CV
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JUSTIN SMITH AND RICHARD HEREDIA, Appellants
V.
DIRECTRU ASSETS MANAGEMENT, LLC, Appellee

On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-16-07-0672-CV

MEMORANDUM OPINION
This is an appeal from a summary judgment in favor of Appellee, Directru
Assets Management, LLC (Directru Assets), and against Appellants, Justin Smith
and Richard Heredia. In one issue, Appellants contend that the trial court erred when
it granted summary judgment. Specifically, Appellants argue that the evidence
attached to Directru Assets’ combined motion for summary judgment was sufficient
evidence to raise a genuine issue of material fact. Because we conclude that
Appellants failed to produce that evidence for the trial court’s consideration, we
affirm the trial court’s judgment.
Background Facts
Appellants sued Directru Assets for negligence and trespass. After adequate
time for discovery, Directru Assets filed a combined traditional and no-evidence
motion for summary judgment. In relevant part, Directru Assets argued that there
was no evidence on any of the elements of Appellants’ negligence and trespass
claims.
In response to Directru Assets’ combined motion, Appellants produced
several pieces of evidence, which they argued to the trial court raised a genuine issue
of material fact and precluded summary judgment. Directru Assets filed its
objections to the evidence. After a hearing on the objections, the trial court issued
an order in which it sustained Directru Assets’ objections and struck Appellants’
responsive evidence for all purposes. The record does not show that Appellants later
produced any other evidence.
After a hearing on Directru Assets’ combined motion, the trial court granted
Directru Assets’ traditional and no-evidence motion for summary judgment. The
trial court also rendered final judgment in favor of Directru Assets. In doing so, the
trial court ordered that Appellants take nothing against Directru Assets and
dismissed all of their claims against Directru Assets with prejudice. This appeal
followed.
Analysis
Appellants bring one issue on appeal. In their issue, Appellants contend that
the trial court erred when it granted summary judgment “because there was sufficient
evidence to meet [their] burden of proof.” We disagree.

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 We review grants of summary judgment de novo. Cantey Hanger, LLP v.
Byrd, 467 S.W.3d 477, 481 (Tex. 2015). In our review, we take as true all evidence
favorable to the nonmovant, indulge every reasonable inference in favor of the
nonmovant, and resolve any doubts in the nonmovant’s favor. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
When a party moves for both traditional and no-evidence summary
judgments, we first consider the no-evidence motion. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004). If the nonmovant fails to meet its burden under
the no-evidence motion, there is no need to address the challenge to the traditional
motion. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Thus,
we first review each claim under the no-evidence standard. Any claims that survive
the no-evidence review will then be reviewed under the traditional standard.
To defeat a no-evidence motion, the nonmovant must produce evidence
raising a genuine issue of material fact as to the challenged elements. TEX. R. CIV. P.
166a(i). A genuine issue of material fact exists if the evidence “rises to a level that
would enable reasonable and fair-minded people to differ in their conclusions.”
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). The evidence
does not create an issue of material fact if it is “so weak as to do no more than create
a mere surmise or suspicion” that the fact exists. Kia Motors Corp. v. Ruiz, 432
S.W.3d 865, 875 (Tex. 2014) (quoting Ridgway, 135 S.W.3d at 601).
In its no-evidence motion, Directru Assets properly asserted, among other
things, that there was no evidence on any of the elements of Appellants’ negligence
and trespass claims. To defeat this motion, Appellants were required to produce
evidence that raised a genuine issue of material fact on the challenged elements. See
TEX. R. CIV. P. 166a(i). Appellants, however, failed to meet this burden.

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 At trial, the trial court struck, for all purposes, the evidence Appellants
initially produced in response to Directru Assets’ motion for summary judgment.
Appellants do not challenge the trial court’s evidentiary rulings on that evidence on
appeal, and they do not rely on this evidence to overturn the summary judgment.
See generally Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 572
(Tex. App.—Amarillo 2013, pet. denied) (“When a party fails to object to the trial
court’s ruling that sustains an objection to his summary judgment evidence, he has
not preserved the right to complain on appeal about the trial court’s ruling.” (quoting
Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.))).
Moreover, the record does not show that Appellants produced any other evidence in
response to Directru Assets’ motion for summary judgment.
On appeal, to show that a genuine issue of material fact existed, Appellants
point to evidence that was attached to Directru Assets’ combined motion for
summary judgment. According to Appellants, this evidence was sufficient to meet
their burden of production to preclude summary judgment. We disagree.
Appellants did not advise the trial court in its summary judgment reply that it
was relying on evidence attached to Directru Assets’ combined motion for summary
judgment to defeat the no-evidence motion for summary judgment. Appellants may
not point to such evidence, for the first time on appeal, to raise a genuine issue of
material fact. See B.C. v. Steak N Shake Operations, Inc., 532 S.W.3d 547, 551
(Tex. App.—Dallas 2017, pet. filed). Although the nonmovant may not be required
to resubmit the evidence already proffered by the movant at trial, the nonmovant
must, at a minimum, file a timely response identifying the portions of the movant’s
evidence that the nonmovant is relying on to show that fact issues exist. See id.
Here, Appellants failed to identify such evidence for the trial court’s
consideration. Because Appellants failed to produce evidence raising a genuine

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issue of material fact on all of the challenged elements, we conclude that the trial
court did not err when it granted Directru Assets’ motion for summary judgment.
Accordingly, we overrule Appellants’ sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.

KEITH STRETCHER
JUSTICE

August 30, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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