                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                             NO. 02-12-00173-CV


LOUIS C. BARNES                                                 APPELLANT

                                      V.

CHARLES MICHAEL ATHENS                                            APPELLEE


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          FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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                               I. INTRODUCTION

      In two issues, Appellant Louis C. Barnes, appearing pro se, appeals the

take-nothing summary judgment granted in favor of Appellee Charles Michael

Athens. We will affirm.



                  II. FACTUAL AND PROCEDURAL BACKGROUND
      1
       See Tex. R. App. P. 47.4.
      Following a three-car accident allegedly caused by Athens and resulting in

injuries to Barnes, Barnes sued Athens in the justice of the peace court. The

matter was tried to a jury, which awarded Barnes $2,000 for pain and suffering.

The justice of the peace signed a judgment awarding Barnes $2,000, plus

postjudgment interest and court costs. Barnes thereafter appealed the judgment

to the county court at law.2

      In the county court at law, Athens filed a traditional and no-evidence

motion for summary judgment, arguing under the traditional portion that Barnes

had originally filed his lawsuit after the expiration of the two-year statute of

limitations applicable to tort claims and arguing in the no-evidence portion that

Barnes had no evidence to prove his negligence claim. Barnes, in response,

filed his first amended original petition and a response to Athens’s motion for

summary judgment.       One day before the hearing on Athens’s motion for

summary judgment, Athens filed objections to Barnes’s summary judgment

evidence and served Barnes via certified and first-class mail the same day. The

following day, the county court at law heard Athens’s objections to Barnes’s

summary judgment evidence and sustained all of Athens’s objections.             The

county court at law thereafter granted Athens’s motion for summary judgment



      2
        Athens states in his brief that he mailed Barnes a check in full satisfaction
of the judgment and a release of judgment but that Barnes returned the check.
The record before us does not contain evidence to support or refute these
statements.


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without stating the reasons and signed a judgment that Barnes take nothing on

his claims against Athens. Barnes perfected this appeal.

III. COUNTY COURT AT LAW DID NOT ABUSE ITS DISCRETION BY CONSIDERING AND
            SUSTAINING TIMELY-FILED OBJECTIONS WITHOUT GIVING
                      OPPORTUNITY TO CURE DEFECTS

      In his first issue, Barnes complains that the county court at law erred by

granting summary judgment when the summary judgment response was filed

one day before the hearing and was not properly before the court.           In fact,

Athens filed objections to Barnes’s summary judgment evidence one day before

the hearing; Athens was the summary judgment movant and did not file a

response. The rules and cases that Barnes relies upon are not applicable here.

Rule 166a does not impose a deadline by which a movant must file its reply

(including objections) to a nonmovant’s response. See Tex. R. Civ. P. 166a(c);

Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex. App.—Fort Worth 2004, pet.

denied). As a result, a trial court acts within its discretion when it considers

objections filed as late as the day of the hearing. See Reynolds v. Murphy, 188

S.W.3d 252, 259 (Tex. App.—Fort Worth 2006, pet. denied) (holding that

movant’s objections to competency of a nonmovant’s evidence that were filed the

day of the summary judgment hearing were not untimely and could be

considered and ruled upon by the trial court), cert. denied, 549 U.S. 1281 (2007);

Shelton, 144 S.W.3d at 118–19 (holding that trial court was within its discretion to

consider appellees’ objections to summary judgment evidence even though

objections were filed two days before summary judgment hearing); see also


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Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513, 521–22 (Tex. App.—

Dallas 2007, no pet.) (holding that objections, filed one day before the summary

judgment motion was submitted to the trial court, were timely). We hold that the

county court at law did not abuse its discretion by considering and ruling upon

Athens’s objections. We therefore overrule Barnes’s first issue.3

      In his second issue, Barnes argues that the county court at law erred by

sustaining Athens’s objections to Barnes’s summary judgment evidence without

allowing Barnes an opportunity to cure the defects.4 But the record does not

show that Barnes requested the opportunity to cure the defects. The civil docket

notes that “¶ appeared” at the summary judgment hearing, but no record was

made of the summary judgment hearing. Nothing exists in the record to show

that Barnes took any action in the county court at law to indicate that he desired

the opportunity to correct any defects in his summary judgment evidence; the

record does not show that Barnes requested or filed a motion for continuance for


      3
       To the extent that Barnes’s first issue could be very broadly construed as
a challenge not only to the trial court’s consideration of Athens’s objections but
also as a challenge to the summary judgment for Athens, Barnes makes no
argument attacking the substantive grounds on which Athens sought summary
judgment—that Barnes filed suit outside the applicable statute of limitations and
that no evidence exists of negligence by Athens. Consequently, even broadly
construing Barnes’s issue, he has not shown that the summary judgment for
Athens was erroneous.
      4
       Barnes concedes in his brief that Athens’s objections “had some merit.”
Barnes does not argue on appeal that the substance of the trial court’s rulings
sustaining Athens’s objections was erroneous—only that he should have been
given an opportunity to cure any defects before the trial court ruled.


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time to respond to Athens’s objections. The county court at law did not err by

ruling on Athens’s objections without granting Barnes relief he did not request––

that being the opportunity to cure the defects in his summary judgment evidence.

See Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex. App.—Fort Worth 2004, no

pet.) (holding that in absence of timely request, objection, or motion seeking the

opportunity to cure defects, trial court did not err by failing to grant unrequested

relief of providing opportunity to cure defect in doctor’s affidavit); Webster v.

Allstate Ins. Co., 833 S.W.2d 747, 750 (Tex. App.—Houston [1st Dist.] 1992, no

writ) (holding that in the absence of request for a continuance in order to respond

to objections, trial court did not err by failing to grant opportunity to cure defects

before sustaining objections). We overrule Barnes’s second issue.

                                  IV. CONCLUSION

      Having overruled both of Barnes’s issues, we affirm the county court at

law’s judgment.


                                                    SUE WALKER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DELIVERED: October 18, 2012




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