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Filed 13 Ma’ 20 A7:53
Chris Daniel - District Clerk
Harris Coun!
ED101) 017494713
By: Carla E. Carrillo
Ca. No. 201272431
NATIONAL AUTO FINANCE COMPANY LLC, IN THE DISTRICT COURT
Plaintiff,
vs. 215TH JUDICIAL DISTRICT
NICHOLAS EZENWA,
Defendant. HARRIS COUNTY, TEXAS
Plaintiff's Response to Defendant’s Motion to Dismiss Summary Judgment
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW National Auto Finance Company, LLC (‘Plaintiff’), Plaintiff in the above-referenced
action, and files this, its Response to Defendant Nicholas Ezenwa's (“Defendant”) Motion to Dismiss
Summary Judgment.
I BACKGROUND
Plaintiff filed its Original Petition on December 7, 2012. Defendant filed his Answer on January
28, 2013. Plaintiff filed its Motion for Summary Judgment on March 25, 2013. A hearing on Plaintiff's
Motion for Summary Judgment was set by submission for April 29, 2013 at 8:00 AM. On April 4, 2013,
Plaintiff mailed notice of such hearing to Defendant by certified mail, return receipt requested, at the
address appearing on Defendant's pleadings. Defendant filed no response to Plaintiff's Motion for
Summary Judgment. On April 29, 2013, the Court signed its Final Judgment, granting Plaintiff's Motion
for Summary Judgment and awarding Plaintiff the relief it sought. Defendant served Plaintiff with his
Motion to Dismiss Summary Judgment via Federal Express on April 30, 2013.
I. ARGUMENT AND AUTHORITIES
Defendant is appearing in this suit pro se. Although courts liberally construe a pro se litigant’s
pleadings, courts also hold pro se litigants to the same standards as a licensed attorney with respect to
the rules of procedure and substantive law. See Nabelek v. Bradford, 228 S.W.3d 715, 717 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied). If courts did otherwise, courts would give pro se litigants an
unfair advantage over litigants represented by counsel. Jarvis v. Field, 327 S.W.3d 918, 925 (Tex.
App.—Corpus Christi 2010, no pet.). In construing pleadings, courts look to the substance of the plea for
relief and not merely to the title given the pleading. See State Bar of Tex. V. Heard, 603 S.W.2d 829, 833
(Tex. 1980). It is within this framework that the Court must construe Defendant's Motion to Dismiss
Summary Judgment.
Defendant's Motion to Dismiss Summary Judgment was filed after judgment was entered. The
motion requests the Defendant have “an opportunity to be heard,” that Defendant not be denied his “due
process right to be heard before this honorable court,” that the Court “consider the material and
underlying facts to [sic] this case,” and that “this honorable court give the parties an opportunity to be
heard.” Above the title “MOTION TO DISMISS SUMMARY JUDGMENT” the motion reads “NOTICE OF
HEARING.” In light of the relief requested by the motion, Plaintiff will address the motion as a motion for
new trial, motion for reconsideration, and/or motion to modify the judgment.
A Motion for New Trial
When summary judgment is properly granted, a trial court does not abuse its discretion in
denying a motion for new trial. See Morris v. Greater McAllen Star Properties, No. 13-11-00316-CV, 2012
WL 3043106, *8 n. 22 (Tex. App.—Corpus Christi July 26, 2012, no pet.); Bagan v. Hays, No. 03-08-
00786-CV, 2010 WL 3190525, *6 (Tex. App.—Austin Aug. 12, 2012, no pet.); McDole v. San Jacinto
Methodist Hosp., 886 S.W.2d 357, 361 (Tex. App.—Houston [1st Dist.] 1994, no writ.). However, a
nonmovant who fails to timely file a response to a motion for summary judgment may nonetheless be
entitled to a new trial. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 683 (Tex. 2002).
Such a nonmovant must show that he did not have actual or constructive notice of the hearing or an
opportunity to extend the deadlines imposed by Texas Rule of Civil Procedure 166a. Id. Where a
nonmovant does not establish these facts, failing to respond alone will not be good cause for granting a
new trial. /d.
Here, Plaintiff presented competent summary judgment evidence which was uncontroverted, and
Defendant failed to raise a genuine issue of material fact as to any element of Plaintiff's claim for breach
of contract. Plaintiff served upon Defendant notice of the summary judgment hearing by submission by
certified mail, as required by Texas Rule of Civil Procedure 21a. A true and correct copy of the letter
accompanying the notice, as well as the signed return receipt, is attached hereto as Exhibit 1. Further,
Plaintiff timely mailed such notice twenty-five (25) days prior to the hearing date, allowing Defendant the
opportunity to timely respond or seek to extend the Rule 166a deadlines. Therefore, summary judgment
was properly granted and the Court should deny Defendant's motion. Further, Defendant's failure to
respond to Plaintiff's Motion for Summary Judgment is not good cause for which the Court should grant
Defendant a new trial.
B Motion for Reconsideration
“When a trial court properly grants a motion for summary judgment, it is under no obligation to
grant a motion for reconsideration.” RNA Investments Inc. v. Employers Ins. of Wausau, No. 05-99-
01704-CV, 2000 WL 1708918, *3 (Tex. App.—Dallas, Nov. 16, 2000, no pet.)(citing Methodist Hosp. v.
Corporate Communicators, 806 S.W.2d 879, 883 (Tex. App.—Dallas 1991, writ denied)). A trial court’s
denial of a motion for reconsideration will be upheld on appeal unless the trial court acted arbitrarily,
unreasonably, or without reference to any guiding rules or legal principles. See id. (citing Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998)).
As stated above, Plaintiff presented competent summary judgment evidence which was
uncontroverted, and Defendant failed to raise a genuine issue of material fact as to any element of
Plaintiff's claim for breach of contract. Therefore, should the Court construe Defendant's motion as a
motion for reconsideration, such motion should be denied as the Court properly granted Plaintiff summary
judgment and is under no obligation to grant Defendant's motion.
c. Motion to Modify Judgment
Texas Rule of Civil Procedure 329b(g) states that a motion to modify, correct, or reform a
judgment “shall specify the respects in which the judgment should be modified, corrected, or reformed.”
Tex. R. Civ. P. 329b(g). Defendant's motion does not specify any respects in which the judgment should
be modified. Therefore, should the Court construe Defendant's motion as a motion to modify judgment,
such motion should be denied as it does not comply with the Texas Rules of Civil Procedure.
I. CONCLUSION
Although courts liberally construe the pleadings of a pro se litigant, no construction of Defendant's
Motion to Dismiss Summary Judgment would entitle Defendant to a new trial, reconsideration of Plaintiff's
Motion for Summary Judgment, or a modification of the final judgment in this cause. Defendant's motion
should be denied because summary judgment was properly granted as set forth above.
WHEREFORE Plaintiff prays that this Court set this matter for hearing by submission and
thereafter deny Defendant's Motion to Dismiss Summary Judgment.
Respectfully submitted,
BEASLEY, HIGHTOWER & HARTMANN, P.C.
1601 Elm St., Suite 4350
Dallas, Texas 75201
Telephone (214) 220-4700
Facsimile (214) 220-4747
By: Aah
Kimberly P. Harris
State Bar No. 24002234
Mackenzie B. Linyard
State Bar No. 24083399
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
| hereby certify that a true and correct copy of the above and foregoing document was served on
Defendant on this the SShé day of _/ Coss , 20/3 as follows:
Via Reqular Mail &
CMRRR# 7011 3500 0002 9894 1062
Nicholas Ezenwa
1222 Watermoon
Richmond, Texas 77469
Ake $l
Mackenzie B. Linyard
Preview
Filed 13 Ma’ 20 A7:53 Chris Daniel - District Clerk Harris Coun! ED101) 017494713 By: Carla E. Carrillo Ca. No. 201272431 NATIONAL AUTO FINANCE COMPANY LLC, IN THE DISTRICT COURT Plaintiff, vs. 215TH JUDICIAL DISTRICT NICHOLAS EZENWA, Defendant. HARRIS COUNTY, TEXAS Plaintiff's Response to Defendant’s Motion to Dismiss Summary Judgment TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW National Auto Finance Company, LLC (‘Plaintiff’), Plaintiff in the above-referenced action, and files this, its Response to Defendant Nicholas Ezenwa's (“Defendant”) Motion to Dismiss Summary Judgment. I BACKGROUND Plaintiff filed its Original Petition on December 7, 2012. Defendant filed his Answer on January 28, 2013. Plaintiff filed its Motion for Summary Judgment on March 25, 2013. A hearing on Plaintiff's Motion for Summary Judgment was set by submission for April 29, 2013 at 8:00 AM. On April 4, 2013, Plaintiff mailed notice of such hearing to Defendant by certified mail, return receipt requested, at the address appearing on Defendant's pleadings. Defendant filed no response to Plaintiff's Motion for Summary Judgment. On April 29, 2013, the Court signed its Final Judgment, granting Plaintiff's Motion for Summary Judgment and awarding Plaintiff the relief it sought. Defendant served Plaintiff with his Motion to Dismiss Summary Judgment via Federal Express on April 30, 2013. I. ARGUMENT AND AUTHORITIES Defendant is appearing in this suit pro se. Although courts liberally construe a pro se litigant’s pleadings, courts also hold pro se litigants to the same standards as a licensed attorney with respect to the rules of procedure and substantive law. See Nabelek v. Bradford, 228 S.W.3d 715, 717 (Tex. App.— Houston [14th Dist.] 2006, pet. denied). If courts did otherwise, courts would give pro se litigants an unfair advantage over litigants represented by counsel. Jarvis v. Field, 327 S.W.3d 918, 925 (Tex. App.—Corpus Christi 2010, no pet.). In construing pleadings, courts look to the substance of the plea for relief and not merely to the title given the pleading. See State Bar of Tex. V. Heard, 603 S.W.2d 829, 833 (Tex. 1980). It is within this framework that the Court must construe Defendant's Motion to Dismiss Summary Judgment. Defendant's Motion to Dismiss Summary Judgment was filed after judgment was entered. The motion requests the Defendant have “an opportunity to be heard,” that Defendant not be denied his “due process right to be heard before this honorable court,” that the Court “consider the material and underlying facts to [sic] this case,” and that “this honorable court give the parties an opportunity to be heard.” Above the title “MOTION TO DISMISS SUMMARY JUDGMENT” the motion reads “NOTICE OF HEARING.” In light of the relief requested by the motion, Plaintiff will address the motion as a motion for new trial, motion for reconsideration, and/or motion to modify the judgment. A Motion for New Trial When summary judgment is properly granted, a trial court does not abuse its discretion in denying a motion for new trial. See Morris v. Greater McAllen Star Properties, No. 13-11-00316-CV, 2012 WL 3043106, *8 n. 22 (Tex. App.—Corpus Christi July 26, 2012, no pet.); Bagan v. Hays, No. 03-08- 00786-CV, 2010 WL 3190525, *6 (Tex. App.—Austin Aug. 12, 2012, no pet.); McDole v. San Jacinto Methodist Hosp., 886 S.W.2d 357, 361 (Tex. App.—Houston [1st Dist.] 1994, no writ.). However, a nonmovant who fails to timely file a response to a motion for summary judgment may nonetheless be entitled to a new trial. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 683 (Tex. 2002). Such a nonmovant must show that he did not have actual or constructive notice of the hearing or an opportunity to extend the deadlines imposed by Texas Rule of Civil Procedure 166a. Id. Where a nonmovant does not establish these facts, failing to respond alone will not be good cause for granting a new trial. /d. Here, Plaintiff presented competent summary judgment evidence which was uncontroverted, and Defendant failed to raise a genuine issue of material fact as to any element of Plaintiff's claim for breach of contract. Plaintiff served upon Defendant notice of the summary judgment hearing by submission by certified mail, as required by Texas Rule of Civil Procedure 21a. A true and correct copy of the letter accompanying the notice, as well as the signed return receipt, is attached hereto as Exhibit 1. Further, Plaintiff timely mailed such notice twenty-five (25) days prior to the hearing date, allowing Defendant the opportunity to timely respond or seek to extend the Rule 166a deadlines. Therefore, summary judgment was properly granted and the Court should deny Defendant's motion. Further, Defendant's failure to respond to Plaintiff's Motion for Summary Judgment is not good cause for which the Court should grant Defendant a new trial. B Motion for Reconsideration “When a trial court properly grants a motion for summary judgment, it is under no obligation to grant a motion for reconsideration.” RNA Investments Inc. v. Employers Ins. of Wausau, No. 05-99- 01704-CV, 2000 WL 1708918, *3 (Tex. App.—Dallas, Nov. 16, 2000, no pet.)(citing Methodist Hosp. v. Corporate Communicators, 806 S.W.2d 879, 883 (Tex. App.—Dallas 1991, writ denied)). A trial court’s denial of a motion for reconsideration will be upheld on appeal unless the trial court acted arbitrarily, unreasonably, or without reference to any guiding rules or legal principles. See id. (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). As stated above, Plaintiff presented competent summary judgment evidence which was uncontroverted, and Defendant failed to raise a genuine issue of material fact as to any element of Plaintiff's claim for breach of contract. Therefore, should the Court construe Defendant's motion as a motion for reconsideration, such motion should be denied as the Court properly granted Plaintiff summary judgment and is under no obligation to grant Defendant's motion. c. Motion to Modify Judgment Texas Rule of Civil Procedure 329b(g) states that a motion to modify, correct, or reform a judgment “shall specify the respects in which the judgment should be modified, corrected, or reformed.” Tex. R. Civ. P. 329b(g). Defendant's motion does not specify any respects in which the judgment should be modified. Therefore, should the Court construe Defendant's motion as a motion to modify judgment, such motion should be denied as it does not comply with the Texas Rules of Civil Procedure. I. CONCLUSION Although courts liberally construe the pleadings of a pro se litigant, no construction of Defendant's Motion to Dismiss Summary Judgment would entitle Defendant to a new trial, reconsideration of Plaintiff's Motion for Summary Judgment, or a modification of the final judgment in this cause. Defendant's motion should be denied because summary judgment was properly granted as set forth above. WHEREFORE Plaintiff prays that this Court set this matter for hearing by submission and thereafter deny Defendant's Motion to Dismiss Summary Judgment. Respectfully submitted, BEASLEY, HIGHTOWER & HARTMANN, P.C. 1601 Elm St., Suite 4350 Dallas, Texas 75201 Telephone (214) 220-4700 Facsimile (214) 220-4747 By: Aah Kimberly P. Harris State Bar No. 24002234 Mackenzie B. Linyard State Bar No. 24083399 ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the above and foregoing document was served on Defendant on this the SShé day of _/ Coss , 20/3 as follows: Via Reqular Mail & CMRRR# 7011 3500 0002 9894 1062 Nicholas Ezenwa 1222 Watermoon Richmond, Texas 77469 Ake $l Mackenzie B. Linyard