      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00295-CV



                                 James P. Halfmann, Appellant

                                                 v.

                      Employers General Insurance Company, Appellee




   FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT
          NO. 13,615, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               James P. Halfmann appeals from the district court’s summary judgment that he take

nothing from Employers General Insurance Company1 in his suit for judicial review of the denial of

worker’s compensation benefits. Halfmann raises essentially three issues on appeal. He asserts that

the court erred in granting appellee’s no-evidence motion for summary judgment because the record

contains evidence showing a genuine issue of material fact as to whether Halfmann’s cervical injury

is compensable. He contends that the district court erred by granting traditional summary judgment




       1
          Although Halfmann named Employers General Insurance Company as the defendant
below, Old Republic Insurance Company filed a verified denial that Employers was the proper
defendant. In its final judgment, the district court wrote that its decision was based on the motion
filed by Old Republic Insurance Company, “improperly named as Employers General Insurance
Company.” To avoid confusion, we will refer to the insurance company as “appellee.”
on the basis that Halfmann named the wrong defendant. Finally, he argues that the district court

erred in failing to grant his motion for a new trial. We will affirm the judgment.


                                         BACKGROUND

               Halfmann sustained an injury to his right shoulder on July 12, 1999. Subsequently,

he contended that this work-related injury also included an injury he sustained to his cervical area.

After a hearing, the Texas Workers’ Compensation Commission (TWCC) determined that the work-

related injury did not extend to the cervical spine. Halfmann, appearing pro se, brought this issue

before the TWCC Appeals Panel. The Appeals Panel affirmed TWCC’s decision, and Halfmann

filed suit for judicial review on June 20, 2003. See Tex. Lab. Code Ann. § 410.252 (West Supp.

2004-05).

               On November 4, 2003, appellee filed a no-evidence motion for summary judgment.

The district court scheduled a hearing on that motion for December 11, 2003. Although appellee

filed an amended motion for summary judgment on November 20, 2003, the hearing remained set

for December 11, 2003; Halfmann alleges that he did not receive notice of the amended motion until

November 22, 2003. Halfmann appeared at the hearing on December 11, 2003 and argued his case

pro se; however, he did not file a written response with the court. The district court granted

appellee’s Amended Motion for Final Summary Judgment on January 22, 2004 without specifying

the theory on which it was based. That same day, an attorney filed a notice of appearance as

Halfmann’s counsel. Halfmann then filed a motion for new trial on February 11, 2004. The motion

was overruled by operation of law on April 6, 2004.




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                                           DISCUSSION

               Halfmann contends that the district court erred regardless of the basis on which it

granted summary judgment. He asserts that a no-evidence motion for summary judgment was

erroneous because evidence in the record created a fact question about the compensability of

Halfmann’s cervical injury. He contends that the court erred by granting a traditional summary

judgment on the claim that Halfmann sued the wrong party. Finally, he argues that the court erred

by failing to grant his motion for new trial.


Summary Judgment

               Although the district court did not expressly state whether it was granting summary

judgment on no-evidence or traditional grounds, the judgment recites that “Plaintiff’s compensable

injury does not extend to and include an injury to his cervical spine.” Because that conclusion was

the basis of the no-evidence portion of appellee’s motion, we will begin by examining that basis.

               In its no-evidence motion for summary judgment, appellee contended that no

evidence supported Halfmann’s assertion that his work-related injury extended to and included his

neck injury. Appellee asserted in its motion for no-evidence summary judgment that Halfmann had

failed to provide any proof within a reasonable degree of medical probability to support his

contention that his cervical condition resulted from the original compensable, work-related injury.

               Halfmann’s failure to file any timely response left the district court with no option

but to grant the motion for summary judgment. When one party files a no-evidence motion for

summary judgment, “[t]he court must grant the motion unless the respondent produces summary




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judgment evidence raising a genuine issue of material fact.” Tex. R. Civ. P. 166a(I) (emphases

added). The respondent to a motion for summary judgment may file and serve opposing affidavits

or other written response not later than seven days before the day of a hearing on summary judgment

unless the court grants leave to file later. Tex. R. App. P. 166a(c). Evidence filed after that date may

be considered on appeal only if there is some indication that the trial court allowed the late filing and

considered the evidence. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (refusing

to consider affidavit in opposition to summary judgment filed without permission two days before

hearing). Halfmann filed some documents on the date of the hearing but did not serve them on

appellee. There is no showing that the court accepted or considered this late filing.

                Halfmann argues that the Appeals Panel decision shows that there is evidence

supporting his position that the cervical injury was work-related and compensable. The decision

recites that “[c]onflicting evidence was presented on the disputed issue of whether the compensable

injury includes an injury to the cervical area.” Halfmann also notes that, in affirming the TWCC’s

decision, the Appeals Panel relied on a factual sufficiency standard of review rather than a legal

sufficiency standard, which he contends supports his view that there was at least some evidence

supporting his position. But none of the evidence itself was submitted to the district court timely,

nor was this argument made to the district court at the summary-judgment hearing. The district court

properly granted appellee’s no-evidence motion for summary judgment.

                Because we conclude that the summary judgment was proper on the no-evidence

basis, we need not consider whether the grounds for the traditional motion also support the judgment




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because that issue would not change our disposition of the appeal.2 See Tex. R. App. P. 47.1

(opinions must address every issue necessary to final disposition of appeal); cf. Western Invs., Inc.

v. Urena, 162 S.W.3d 547, 550 (Tex. 2004).


Motion for New Trial

               Halfmann complains that the district court erred by denying his motion for new trial.

In his motion for new trial, he complained that there was no adequate time for discovery before the

summary judgment, that the first amended motion for summary judgment did not provide the

required twenty-one days’ advance notice of the summary-judgment hearing, and that his difficulty

in obtaining counsel prevented him from adequately presenting these and other complaints (including

evidence challenging the motion for summary judgment).

               Halfmann contends that he is entitled to the standard of review used for default

judgments because his failure to respond to the motion for summary judgment was the result of

accident or mistake. See Costello v. Johnson, 680 S.W.2d 529, 531 (Tex. App.—Dallas 1984, writ

ref’d n.r.e.); see also Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)

(setting default-judgment standards). In Craddock, the court held that a new trial should be ordered

and the default judgment should be set aside when “the failure of the defendant to answer before

judgment was not intentional, or the result of conscious indifference on his part, but was due to a

mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed

at a time when the granting thereof will occasion no delay or otherwise work an injury to the


       2
         We nevertheless note that there is no indication that the court rendered summary judgment
for appellee on the basis that Old Republic, not Employer General, is the proper defendant.

                                                  5
plaintiff.” 133 S.W.2d at 126. However, “Craddock does not apply to a motion for new trial filed

after summary judgment is granted on a motion to which the nonmovant failed to timely respond

when the respondent had notice of the hearing and an opportunity to employ the means our civil

procedure rules make available to alter the deadlines Rule 166a imposes.” Carpenter v. Cimarron

Hydrocarbons Corp., 98 S.W.3d 682, 683-84 (Tex. 2002).

               Here, Halfmann asserts that the primary reason for his failure to file a proper response

to the motion for summary judgment was his inability to obtain counsel to represent him. The failure

to hire counsel does not alone excuse Halfmann’s failure to file a response because “[a] pro se

litigant is held to the same standards as a licensed attorney and must comply with applicable laws

and rules of procedure.” Strange v. Continental Cas. Co., 126 S.W.3d 676, 677-78 (Tex.

App.—Dallas 2004, pet. denied) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85

(Tex. 1978)). We cannot make allowances for the fact that a plaintiff is not a lawyer. See Cohn, 573

S.W.2d at 185. Parties proceeding pro se must be required to comply with applicable laws and

procedure or else they would enjoy an unfair advantage over litigants with representation. In re

Estate of Dilasky, 972 S.W.2d 763, 766 (Tex. App.—Corpus Christi 1998, no pet.).

               The fact that Halfmann did not hire counsel between the time of his injury and the

deadline to file a response to summary judgment four years later does not show accident or mistake

in failing to file a response. Furthermore, as appellee correctly asserts, the rules of civil procedure

provided Halfmann an opportunity to obtain leave to file a late response to the summary-judgment

motion, see Tex. R. Civ. P. 166a(c), and to seek a continuance of the summary-judgment hearing,




                                                  6
see Tex. R. Civ. P. 251. He did neither. Halfmann’s inability to obtain counsel until after the

summary-judgment hearing does not entitle him to a new trial under the Craddock test.

               Because Halfmann had notice of the hearing and the opportunity to alter the deadlines

imposed by Rule 166a, we will review the denial of his motion for new trial under an abuse of

discretion standard of review. See Carpenter, 98 S.W.3d at 683-84; see also Limestone Constr., Inc.

v. Summit Comm. Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex. App—Austin 2004, no pet.).

When a motion for new trial is overruled by operation of law, the question becomes whether the trial

court abused its discretion in allowing the motion to be overruled. Limestone, 143 S.W.3d at 542.

A trial court abuses its discretion when it fails to correctly analyze or apply the law. Id. In matters

that are within the trial court’s discretion, the test is whether the trial court acted arbitrarily or

without reference to guiding legal principles. Id.; see also Goode v. Shoukfeh, 943 S.W.2d 441, 446

(Tex. 1997).

               Halfmann’s argument that the court should have given him a new trial because it

granted summary judgment before he had adequate time for discovery fails because of the nature of

this case. Halfmann complains that the discovery period had not passed when judgment was

rendered, arguing that the court’s January 22, 2004 judgment was well before the default discovery

period expired on July 9, 2004 (nine months after he filed a discovery response, see Tex. R. Civ. P.

190.3(b)(1)(B)(ii)). However, rule 166a(i) requires only that an “adequate” time for discovery

pass—not a specified discovery period. This suit is for judicial review of administrative proceedings

on the same subject. More than four months after filing the suit, Halfmann had requested no

discovery; appellee asserted in its response to Halfmann’s motion for new trial that he had not



                                                  7
initiated any discovery at that point. Absent any indication from the parties to the contrary, the court

could conclude without abusing its discretion that, considering the evidence produced at the

administrative level, Halfmann had adequate time at the trial level for discovery to counter a no-

evidence motion for summary judgment.

                His complaint that the summary-judgment hearing occurred less than twenty-one days

after he received notice of the amended motion for summary judgment does not support reversal

because the summary judgment stands on the no-evidence ground. Halfmann waived his right to

complain of lack of notice by appearing at the hearing without raising this objection. See Luna v.

Estate of Rodriguez, 906 S.W.2d 576, 582 (Tex. App.—Austin 1995); see also Nguyen v. Short,

How, Frels & Heitz, P.C., 108 S.W.3d 558, 560 (Tex. App.—Dallas 2003, pet. denied). The no-

evidence motion undisputedly was filed more than twenty-one days before the hearing. The

amended motion, containing a no-evidence section identical to the original no-evidence motion, was

filed twenty-one days before the hearing. The fact that the no-evidence portions of the two motions

are identical makes the timeliness of the filing of the amended motion immaterial. If the amended

motion was timely, the no-evidence ground was before the court; if the amended motion was

untimely, then the original motion is the live motion, and the no-evidence ground was before the

court. See Tex. R. Civ. P. 65. Either way, Halfmann had adequate notice of the no-evidence basis

for the motion that supports the summary judgment.

                Halfmann’s struggle to obtain counsel does not demonstrate an abuse of discretion

in the denial of his motion for new trial. There is no showing of any statute, rule, or case-law that

required the district court to grant the motion for new trial. Nor does Halfmann make a compelling



                                                   8
argument that the court’s decision is arbitrary or unreasonable. The denial of the motion for new

trial was within the district court’s discretion.


                                           CONCLUSION

                Having overruled all three of Halfmann’s issues on appeal, we affirm the judgment

of the district court.




                                                David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: October 14, 2005




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