


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-03-00030-CV
 
Scott Markwardt,
                                                                      Appellant
 v.
 
Ann Duncan, Individually 
and d/b/a Duncan Trucking 
and David Elmer Duncan,
                                                                      Appellees
 
 
 

From the 87th District Court
Freestone County, Texas
Trial Court # 01-230-B
 

MEMORANDUM 
Opinion

 




          Appellant
filed a motion to dismiss the appeal in the above cause.  It complies with the appropriate appellate
rule.  Tex.
R. App. P. 42.1(a)(1).
          The
appeal is dismissed, and costs are taxed against Appellant.  Tex.
R. App. P. 42.1(d).

 
                                                                   TOM
GRAY
                                                                   Chief
Justice
 
Before Chief Justice Gray,
          Justice Vance, and
          Justice Reyna
Appeal dismissed
Opinion delivered and filed September
 22, 2004
[CV06]


 activity.  Id. at 550.  There is no
evidence in the record on whether or not there were similar thefts or other criminal acts in the
area.  As a result, Crowder Investments did not meet its burden to conclusively negate the
foreseeability element of negligence.  We sustain the first two points.
      The Stephenses' third point is that the court deprived them of due process, under both the
United States and Texas Constitutions, by granting the summary judgment.  In their fourth point,
they assert that the court also violated the open-courts provision of the Texas Constitution. 
Because they did not raise these reasons for why the summary judgment should be denied in their
response to the motion, their third and fourth points are not properly before us on appeal.  See
State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986);  City of Houston v.
Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).  A party cannot raise new
reasons why a summary judgment should be denied for the first time on appeal.  City of Houston,
589 S.W.2d at 678.  However, if the third and fourth points were properly before us, we would
still overrule them because the Stephenses failed to support their claims with argument, authorities,
or references to the record.  See Baucom v. Crews, 819 S.W.2d 628, 631 (Tex. App.—Waco
1991, no writ).  We overrule points three and four.
      We reverse the judgment and remand the cause for trial.
 
                                                                                 BOB L. THOMAS
                                                                                 Chief Justice

Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Reversed and remanded
Opinion delivered and filed November 18, 1992
Publish
