                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-11-00123-CV
        ______________________________


    CHRISTOPHER CASTLEBERRY, Appellant

                          V.

NEW HAMPSHIRE INSURANCE COMPANY, Appellee




   On Appeal from the 276th Judicial District Court
               Morris County, Texas
               Trial Court No. 24,722




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                                   OPINION

         Christopher Castleberry, proceeding pro se, appeals the no-evidence summary judgment

granted to New Hampshire Insurance Company concerning his worker’s compensation claim,

apparently relating to disability associated with an erectile dysfunction problem. Although

Castleberry’s issues are inadequately briefed and could be overruled as such,1 we will, in the

interests of justice, consider his issues to the extent we can determine their nature. To the best of

our understanding, Castleberry appears to be complaining that the trial court erred in granting New

Hampshire’s no-evidence motion for summary judgment and erred in not granting a motion to

transfer venue.

(1)      The Trial Court Did Not Err in Granting the No-Evidence Summary Judgment

         The standard of review for a no-evidence motion for summary judgment is well

established. A nonmovant will defeat a no-evidence summary judgment motion if the nonmovant

presents more than a scintilla of probative evidence on each element of his claim. King Ranch,

Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68,

70-71 (Tex. App.—Austin 1998, no pet.). More than a scintilla of evidence exists when the


1
 The law is well settled that “[a] party proceeding pro se must comply with all applicable procedural rules” and is held
to the same standards as a licensed attorney. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex.
App.––Texarkana 1997, no pet.). We review and evaluate pro se pleadings with liberality and patience, but otherwise
apply the same standards applicable to pleadings drafted by lawyers. Foster v. Williams, 74 S.W.3d 200, 202 n.1
(Tex. App.––Texarkana 2002, pet. denied). The Texas Rules of Appellate Procedure require an appellant’s brief to
contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the
record.” TEX. R. APP. P. 38.1(h). Even by construing Castleberry’s brief with liberality and patience, Castleberry
has failed to adequately brief his issues on appeal. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893,
896 (Tex. App.––Dallas 2010, no pet.).

                                                           2
evidence “rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

            In a summary judgment hearing, the trial court’s decision is based upon written pleadings

and written evidence rather than on live testimony. See TEX. R. CIV. P. 166a(c). Contrary to the

requirements prescribed in summary judgment practice, Castleberry failed to file any written

response to New Hampshire’s motion for summary judgment or otherwise provide any summary

judgment evidence prior to the hearing. At the hearing on that motion, Castleberry attempted to

introduce some summary judgment evidence,2 an attempt to which New Hampshire objected. At

the conclusion of the hearing, the trial court stated, “I’ll examine those documents and determine

whether or not they’re admissible and so reflect in my opinion, in my letter to both of y’all.” In

his letter accompanying the order granting New Hampshire’s motion for summary judgment, the

trial court stated, “Plaintiff failed to produce any admissible evidence,” but did not identify the

reason or reasons that the evidence was deemed inadmissible.

            Any written responses and evidence opposing a motion for summary judgment must be

filed and served at least seven days before the date specified for a hearing. TEX. R. CIV. P.

166a(c). Responses and summary judgment evidence that are not timely filed may be disregarded

by the trial court. See Pinckley v. Dr. Francisco Gallegos, M.D., P.A., 740 S.W.2d 529, 532 (Tex.

App.—San Antonio 1987, writ denied). Castleberry’s summary judgment evidence was not

timely filed.
2
    The record does not reflect the content of this evidence.

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         We note the trial court may grant leave to a litigant to file material after the deadline. TEX.

R. CIV. P. 166a(c). There is nothing in the record to reflect that the trial court refused Castleberry

permission to file a late summary judgment response, but there is likewise no specific ruling that

the late filings were permitted. We note the trial court would not have abused its discretion if it

denied leave to file a late summary judgment response.3 Even if we were to interpret the trial

court’s statement that he would examine the proffered papers to determine their admissibility as

permission to file a late-filed summary judgment response, the record does not establish that

Castleberry introduced more than a scintilla of admissible summary judgment evidence.

         The evidence in a worker’s compensation appeal must comply with the same rules as in

other civil trials. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 528–29 (Tex. 2000); see

TEX. LAB. CODE ANN. § 410.306(a) (West Supp. 2011). Summary judgment evidence must be in

admissible form. TEX. R. CIV. P. 166a(f); see United Blood Servs. v. Longoria, 938 S.W.2d 29, 30

(Tex. 1997). As stated previously, the appellate record does not contain the summary judgment

evidence that Castleberry attempted to introduce at the summary judgment hearing and which the

trial court determined to be inadmissible. 4 By failing to present an adequate record for our



3
 A trial court does not abuse its discretion in denying leave to file a late summary judgment response if the litigant fails
to show “(1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident
or mistake, and (2) allowing the late response will occasion no undue delay or otherwise injure the party seeking
summary judgment.” Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687–88 (Tex. 2002).
Castleberry did not attempt to show good cause for his failure to file a timely summary judgment response.
4
 The clerk’s record does not contain any summary judgment evidence, and Castleberry did not request to file a formal
bill of exceptions.

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review, Castleberry has failed to preserve any error committed by the trial court in ruling the

proffered late summary judgment evidence to be inadmissible. See TEX. R. APP. P. 33.1.

          Because the record does not contain any summary judgment evidence to rebut the

no-evidence summary judgment motion,5 Castleberry has failed to show there is more than a

scintilla of probative evidence on each element of his claim. There is no evidence that would

enable reasonable and fair-minded people to differ in their conclusions. The trial court did not err

in granting New Hampshire’s motion for no-evidence summary judgment.

(2)       Any Issue Concerning Venue Has Not Been Preserved

          Castleberry also complains:

          I feel that the judge has been unfair as far as his decision is concerned. This is a
          prime example of why I requested a change of venue. The Dallas office honored
          my request of change of venue but the Tyler office denied and held it up.

The record on appeal as presented to us contains no written motion requesting a change of venue,

and the reporter’s record does not contain any oral request. We further note that Castleberry

made a similar allegation in his original petition. To the extent that Castleberry complains of any

refusal to grant a requested change in venue in this case, the complaint has not been preserved for

review.




5
 On appeal, Castleberry has filed an appendix to his brief titled “AMENDED COMPLAINT,” which contains a
number of medical documents. We cannot consider documents, that are not part of the record, attached as appendices
to briefs. Paselk v. Rabun, 293 S.W.3d 600, 613 (Tex. App.––Texarkana 2009, pet. denied); WorldPeace v. Comm’n
for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.––Houston [14th Dist.] 2005, pet. denied).

                                                        5
       The Texas Labor Code provides, when the issue is the “compensability or eligibility for or

the amount of income or death benefits,” the lawsuit must be filed in:

                (1)    the county where the employee resided at the time of the injury or
       death, if the employee is deceased; or
                (2)    in the case of an occupational disease, in the county where the
       employee resided on the date disability began or any county agreed to by the
       parties.

TEX. LAB. CODE ANN. § 410.252(b) (West Supp. 2011); see TEX. LAB. CODE ANN. § 410.301

(West 2006).     The venue provisions of Section 410.252(b), while mandatory, are not

jurisdictional. See Tex. Workers’ Comp. Ins. Fund v. Tex. Workers’ Comp. Comm’n, 124 S.W.3d

813, 825 (Tex. App.—Austin 2003, pet. denied); Mayberry v. Am. Home Assur. Co., 122 S.W.3d

455, 458 (Tex. App.—Beaumont 2003, no pet.); Hartford Underwriters Ins. Co. v. Hafley, 96

S.W.3d 469 (Tex. App.—Austin 2002, no pet.); see also Dubai Petroleum Co. v. Kazi, 12

S.W.3d 71, 76 (Tex. 2000) (discussing statutory prerequisites no longer presumed jurisdictional).

       Because the venue provisions are not jurisdictional, any complaint was required to be

raised in the trial court. See TEX. R. APP. P. 33.1. The appellate record does not contain any

motion or objection bringing the issue to the attention of the trial court. Any error in venue has

not been preserved for our review. See, e.g., Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75, 85

(Tex. App.—Texarkana 2008, pet. denied) (venue waived).

       For the reasons stated, we affirm.




                                                6
                                   Bailey C. Moseley
                                   Justice

Date Submitted:   April 23, 2012
Date Decided:     April 25, 2012




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