                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00099-CV


RODNEY A. HURDSMAN                                           APPELLANT

                                     V.

WISE COUNTY SHERIFF                                          APPELLEES
DEPUTIES: JAMES MAYO, CLINT
CADDELL, CHAD LANIER,
CHRISTOPHER HODGES, AND
HIGHTOWER; WISE COUNTY
JUDGES: MELTON CUDE AND
CRAIG JOHNSON; AND THE
COUNTY OF WISE, TEXAS

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         FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                  TRIAL COURT NO. CV16-05-424

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                       MEMORANDUM OPINION 1

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     In his live pleading at the time that the trial court granted summary

judgment, pro se Appellant Rodney A. Hurdsman, an inmate, sued Appellees
     1
      See Tex. R. App. P. 47.4.
Wise County, two Wise County judges—the Honorable Melton Cude, who

presides over County Court at Law No. 1, and the Honorable Craig Johnson, a

Justice of the Peace—and Wise County Sheriff’s Deputies James Mayo, Clint

Caddell, Chad Lanier, Christopher Hodges, and “Hightower” for “declaratory and

injunctive relief, return of property, compensatory and punitive damages, as well

as any attorney fees and other costs associated with this lawsuit,” alleging

violations of his state and federal constitutional rights as well as claims for

conversion, malicious abuse of process, official oppression, negligence,

conspiracy, retaliation—including harassment, intimidation, and threats—and

false arrest.   See U.S. Const. amends. I, IV, V, VI, VIII, XIV; 42 U.S.C.A.

§§ 1983, 1986 (West 2012) (providing, under § 1983, for civil actions for

deprivation of constitutional rights and, under § 1986, for civil actions for

negligence in preventing § 1983 violations); Tex. Const. art. I, §§ 3, 3a, 8, 9, 17,

19, 27. 2


       2
        This appeal is not Hurdsman’s first foray into pro se inmate litigation.
See, e.g., Hurdsman v. White, No. 15-1724, 2016 WL 5723987, at *2 (W.D. La.
Sept. 30, 2016) (dismissing Hurdsman’s petition in which he complained about
his Williamson County criminal case because he had filed evidentiary motions in
the pending criminal prosecution alleging the same constitutional violations with
regard to property seized incident to his arrest), appeal dism’d, No. 16-31081,
2016 WL 10770799 (5th Cir. Dec. 19, 2016); Hurdsman v. Cadell, No. 4:15-CV-
703-Y, 2015 WL 8262469, at *1–2 & n.1 (N.D. Tex. Dec. 9, 2015) (holding that
Hurdsman could not proceed in forma pauperis because he had previously
incurred more than three “strikes” under 28 U.S.C. § 1915(g), which provides that
a prisoner may not proceed in forma pauperis in a civil action if, on three or more
occasions, he has had a case dismissed as frivolous or malicious or for failure to
state a claim unless he is under imminent danger of serious physical injury),
appeal dism’d, No. 15-11271 (5th Cir. Mar. 17, 2016); Hurdsman v. Wackenhut

                                         2
      The defendants moved for traditional summary judgment on their defenses

of limitations, qualified immunity, and judicial immunity and as to Hurdsman’s

“illegal takings” and conversion claims on the basis that the property seizures

had occurred with lawful authority and that Hurdsman had agreed to the

subsequent property award. 3 They moved for no-evidence summary judgment

on the grounds that there was no evidence to show that any of the property was

seized illegally, no evidence that Hurdsman was injured by any act of the

defendants, and no evidence that the defendants violated any provision of the

state or federal constitution.

      In his summary judgment response, Hurdsman argued that the date of

filing for his original petition should have been February 10, 2016, when he

placed his original petition with the jail authorities at the Williamson County

Correctional Facility. Referencing the defendants’ summary judgment evidence,

Hurdsman also argued that the search warrants were tainted by information


Corr. Corp., No. 99-51069, 218 F.3d 744, 2000 WL 821627, at *1–2 (5th Cir.
June 1, 2000) (holding that the trial court did not abuse its discretion by declining
to reopen the time to file an appeal of the dismissal without prejudice of
Hurdsman’s § 1983 action for failure to state a claim).
      3
        To the motion, the county attached, among other items of evidence,
copies of the warrants and the affidavits supporting their issuance, a handwritten
letter of representation of Hurdsman by Ray Napolitan, an attorney in Jim Shaw’s
law office, a handwritten motion for continuance filed by Napolitan; the agreed
judgments and court orders disposing of the property; Hurdsman’s jail release
report; and certified mail receipts and letters showing the county’s attempts to
notify Hurdsman, one of which was ultimately successful in giving notice to
Napolitan on Hurdsman’s behalf.


                                         3
illegally obtained in violation of the federal and state constitutions and state

statutes, that with the illegal information excised, the warrants lacked probable

cause, and that the warrants did not describe the seized property with

particularity. Hurdsman argued that he had never authorized Shaw to represent

him and had never authorized or agreed to a stipulated agreed judgment and that

the defendants were not immune “for their calculated, willful and flagrant violation

of well[-]established Constitutional and statutory law.”

      To his response, Hurdsman attached documents supporting his use of the

“prisoner mailbox rule,” see Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex.

2007), 4 two pages of a seventeen-page Wise County Sheriff’s Office

incident/offense report, and the agreed judgments and orders awarding various

items of seized property.

      In four issues, Hurdsman appeals the trial court’s order that summary

judgment for Appellees was “in all things GRANTED.”               In his first issue,

Hurdsman correctly argues that summary judgment was inappropriate on the

limitations ground. 5 See id. In his second and third issues, Hurdsman contends


      4
      In Ramos, the supreme court stated that “an inmate who does everything
necessary to satisfy timeliness requirements must not be penalized if the
document is ultimately filed tardily because of an error on the part of officials over
whom the inmate has no control.” 228 S.W.3d at 673.
      5
       Although the record does not contain their reply to Hurdsman’s summary
judgment response, Appellees respond that they waived their limitations defense
in the trial court, and they attached a file-marked copy of their reply to their
appellate brief. But see Murphy v. Leveille, No. 02-08-00130-CV, 2009 WL
2619857, at *2 n.3 (Tex. App.—Fort Worth Aug. 26, 2009, no pet.) (mem. op.)

                                          4
that summary judgment was inappropriate on Appellees’ lawful-warrant and

agreed-judgment grounds because the search warrants were not lawful and the

seizure of his property exceeded the warrants’ scope and because he never

authorized or consented to an agreed judgment. 6 In his final issue, Hurdsman

argues that Appellees are not immune from suit because Appellees “knowingly

and willfully violated the Fourth and Fourteenth” Amendments when they illegally

searched his premises and seized his property with a warrant that they knew was

(stating that an appellate court must hear and determine a case “based on the
record as filed and may not consider documents attached as exhibits to briefs”).

        As to his limitations argument, Hurdsman also complains that the trial
judge did not allow the Wise County clerk to file his original petition until after the
limitations period had expired on his claims and that the trial court granted
summary judgment “without conducting an evidentiary hearing, and without
making any findings of facts or conclusions of law.” Nothing in the record
supports Hurdsman’s assertion that the trial judge interfered with the filing of his
petition, and evidentiary hearings are not appropriate in the summary judgment
context. See Tex. R. Civ. P. 166a(c) (“No oral testimony shall be received at the
[summary judgment] hearing.”); G & H Towing Co. v. Magee, 347 S.W.3d 293,
296–97 (Tex. 2011) (“The purpose of a summary judgment is to ‘provide a
method of summarily terminating a case when it clearly appears that only a
question of law is involved and that there is no genuine issue of [material] fact.’”)
(quoting Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex. 1962)). Findings of fact
and conclusions of law are only appropriate following an evidentiary hearing at
which the trial court determines questions of fact based on conflicting evidence.
See Int’l Union v. General Motors Corp., 104 S.W.3d 126, 129 (Tex. App.—Fort
Worth 2003, no pet.) (holding findings of fact and conclusions of law are
appropriate following an evidentiary hearing if the trial court is called upon to
determine questions of fact based on conflicting evidence but not when the trial
court rules without determining questions of fact).
      6
       Appellees respond that no evidence showed that the property seized by
the Wise County Sheriff’s Deputies was seized unlawfully and that Hurdsman
cannot complain about seized property that was subsequently sold when he—
through counsel—“agreed to award that property to the State/County.”


                                          5
invalid.   He further argues that when he attempted to recover his personal

property from the county at the impound yard, “he was subjected to an obscene

and atrocious criminal act by one of the Appellees that was sexual in nature” and

was retaliated against when he attempted to report that act to the proper

authorities in the Wise County Sheriff’s Office.

       When, as here, the trial court’s judgment rests upon more than one

independent ground or defense, the aggrieved party must assign error to each

ground, or the judgment will be affirmed on the ground to which no complaint is

made. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ

denied). In his appellate brief, Hurdsman addressed Appellees’ limitations and

immunity-based affirmative defenses and Appellees’ traditional summary

judgment grounds that the property was seized under lawful authority and that

Hurdsman consented to the disposal of the property in an agreed judgment, but

he did not address Appellees’ no-evidence grounds. 7

       Further, after an adequate time for discovery, 8 the party without the burden

of proof may, without presenting evidence, move for summary judgment on the


       7
        Accordingly, we could affirm the trial court’s judgment simply because
Hurdsman failed to challenge the no-evidence grounds. See, e.g., Leffler v. JP
Morgan Chase Bank, N.A., 290 S.W.3d 384, 387 (Tex. App.—El Paso 2009, no
pet.) (“Because the Appellant has failed to raise a challenge to the granting of the
summary judgment on no-evidence grounds, this issue is waived on appeal, and
we must affirm the summary judgment on those grounds.”).
       8
       Hurdsman does not argue that he did not have an adequate time for
discovery. Appellees answered his petition on September 27, 2016, several
months before they filed their February 3, 2017 motion for summary judgment.


                                         6
ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.      Tex. R. Civ. P. 166a(i).     The motion must

specifically state the element or elements for which there is no evidence. 9 See

id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). Unless a

procedural defect precludes the granting of a no-evidence motion for summary

judgment, the trial court must 10 grant the no-evidence portion of a summary

judgment motion unless the nonmovant produces summary judgment evidence

raising a genuine issue of material fact and points out such evidence to the trial

court. See Kutner v. Wells Fargo Bank, N.A., No. 02-14-00238-CV, 2015 WL

3523156, at *1 (Tex. App.—Fort Worth June 4, 2015, no pet.) (mem. op.); Correa

v. Citimortgage, Inc., No. 02-13-00019-CV, 2014 WL 3696101, at *2–3 (Tex.

App.—Fort Worth July 24, 2014, no pet.) (mem. op.) (citing Dyer v. Accredited

Home Lenders, Inc., No. 02-11-00046-CV, 2012 WL 335858, at *3–5 (Tex.

App.—Fort Worth Feb. 2, 2012, pet. denied) (mem.op.)). And when, as here, a

party moves for summary judgment under both rules 166a(c) and 166a(i), we will

first review the trial court’s judgment under rule 166a(i)’s standards. Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the appellant failed to

      9
        At the conclusion of Appellees’ motion for summary judgment, Appellees
expressly spelled out twelve grounds for summary judgment, three of which
presented no-evidence grounds as to illegal seizure, constitutional violations, and
“that Plaintiff was injured by any act of Defendants.”
      10
        Cf. Tex. R. Civ. P. 166a(i) cmt. (West 2014) (“The denial of a motion
under paragraph (i) is no more reviewable by appeal or mandamus than the
denial of a motion under paragraph (c).”).


                                        7
produce more than a scintilla of evidence under that burden, then there is no

need to analyze whether the appellees’ summary judgment proof satisfied the

rule 166a(c) burden. Id.

      One of Appellees’ summary judgment grounds was that there was no

evidence that Hurdsman was injured by any of their acts.           Damages are an

essential element of a constitutional tort action brought under 42 U.S.C. § 1983

and any other tort action. See generally 42 U.S.C.A. § 1983 (providing that a

person who acts under color of state law to deprive another of any rights,

privileges, or immunities secured by federal law “shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress”);

Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996) (op. on reh’g)

(requiring proof of special damages, among other elements, to prevail in a suit

alleging malicious prosecution of a civil claim); Fix It Today, LLC v. Santander

Consumer USA, Inc., No. 02-14-00191-CV, 2015 WL 2169301, at *2 (Tex.

App.—Fort Worth May 7, 2015, no pet.) (mem. op.) (providing that damages are

an essential element of a civil conspiracy claim); Simpson v. Pinkston, No. 02-05-

00352-CV, 2007 WL 1501965, at *2 (Tex. App.—Fort Worth May 24, 2007, no

pet.) (mem. op.) (stating that the measure of damages for conversion is the

amount necessary to compensate the plaintiff for the actual losses or injuries

sustained as a natural and proximate result of the defendant’s conversion, which

includes the fair market value of the property at the time and place of the

conversion and compensation for loss of the use of the converted property).


                                          8
      While Hurdsman presented arguments in his summary judgment response

and now on appeal that he was harmed, arguments are not evidence. See

Clayton v. Wisener, 169 S.W.3d 682, 684 (Tex. App.—Tyler 2005, no pet.)

(“Motions and arguments of counsel are not evidence.”). Pleadings likewise do

not constitute summary judgment evidence. Wood v. Wells, No. 02-11-00087-

CV, 2011 WL 5515483, at *5 (Tex. App.—Fort Worth Nov. 10, 2011, no pet.)

(mem. op. on reh’g) (“The focus of a no-evidence summary judgment is shifted

from the pleadings to the actual evidence or proof to assess whether there is a

genuine need for a trial.”).

      Most of the evidence that Hurdsman attached to his summary judgment

response pertained to his limitations argument. The remaining evidence—two

pages from a seventeen-page Wise County Sheriff’s Office incident/offense

report referencing a theft allegedly committed by Hurdsman and the agreed

judgments and the orders awarding possession of seized property to the Wise

County Sheriff’s Department—do not demonstrate that Hurdsman suffered any

damages because there is no evidence to show that Hurdsman had any

ownership interests in the seized property or that the agreed judgments were not

actually entered with Hurdsman’s consent.

      Accordingly, the trial court did not err by granting summary judgment on

this no-evidence ground because Hurdsman brought forth no evidence to raise a

genuine issue of material fact from which a reasonable juror could determine that

he was actually damaged by Appellees’ acts. Cf. Tex. Civ. Prac. & Rem. Code


                                       9
Ann. § 132.001(a), (e) (West Supp. 2017) (providing for an unsworn declaration

to be used in lieu of an affidavit required by a statute or rule and setting out the

statutory requirements for an inmate’s unsworn declaration); Tex. R. Civ. P.

166a(f) (stating, with regard to summary judgment evidence, that “[s]upporting

and opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively that

the affiant is competent to testify to the matters stated therein.”). We therefore

overrule Hurdsman’s issues as moot and affirm the trial court’s judgment.


                                                   /s/ Bonnie Sudderth

                                                   BONNIE SUDDERTH
                                                   CHIEF JUSTICE


PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: June 21, 2018




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