                                   NO. 07-08-0213-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                               SEPTEMBER 11, 2009
                         ______________________________

                           STACY L. CONNER, APPELLANT

                                            V.

         KENNETH CHERNUSHEK AND LOLA CHERNUSHEK, APPELLEES
                   _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2007-540,901; HONORABLE RUBEN REYES, JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


             Appellant Stacy L. Conner, acting pro se, appeals a summary judgment in

favor of appellees Kenneth and Lola Chernushek. We affirm.


                                       Background


      Conner filed suit in October 2007, alleging the Chernusheks were liable to him on

several theories. The subject of the lawsuit was residential property in Lubbock previously

owned by Conner. The summary judgment record indicates Conner conveyed the property
to Lola Chernushek, his mother, in 1998. Conner’s pleadings acknowledged he signed the

deed conveying the property, but alleged the conveyance was not a “true sale” but one

made for convenience and that the residence continued to serve as his homestead. He

alleged the Chernusheks later sold the property, depriving him of his home.


      In March 2008, the Chernusheks filed a no-evidence motion for summary judgment,

asserting there had been adequate time for discovery and Conner had no evidence to

establish the essential elements of his claims. Conner brought forth no evidence in

response to the Chernusheks’ motion. Instead, he filed a response contending that facts

stated in the Chernusheks’ motion were sufficient to defeat their no-evidence summary

judgment motion. The trial court granted the motion, and this appeal followed.


                                        Analysis


Standard of Review


      We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). In reviewing the trial court's summary judgment, we must

examine the entire summary judgment record in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against the motion. Yancy

v. United Surgical Partners Intern., Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller

v. Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005).




                                            2
         Rule 166a(i) of the Rules of Civil Procedure provides, “[a]fter adequate time for

discovery, a party without presenting summary judgment evidence may move for summary

judgment on the ground that there is no evidence of one or more essential elements of a

claim or defense on which an adverse party would have the burden of proof at trial. The

motion must state the elements as to which there is no evidence. The court must grant the

motion unless the respondent produces summary judgment evidence raising a genuine

issue of material fact.” Tex. R. Civ. P. 166(a)(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686,

688 (Tex. 2006). A party who files a no-evidence summary judgment motion pursuant to

Rule 166a(i) has essentially requested a pretrial directed verdict. Mack Trucks, Inc. v.

Tamez, 206 S.W.3d 572, 581 (Tex. 2006). When the movant files its motion in proper form,

the burden shifts to the nonmovant to defeat the motion by presenting evidence that raises

an issue of material fact regarding the elements challenged by the motion. Id. at 582;

Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 (Tex.App.–Houston [1st Dist.] 1999, no

pet.).


         To avoid summary judgment, Conner was required to present the trial court with

evidence raising a genuine issue of material fact on the challenged elements. Tex. R. Civ.

P. 166a(i). This required him to present more than a scintilla of probative evidence on

each challenged element of his causes of action. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003); DR Partners v. Floyd, 228 S.W.3d 493 (Tex.App.–

Texarkana 2007, pet. denied). More than a scintilla of evidence exists when the evidence

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

conclusions.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d at 711. If Conner


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failed to bring forth such evidence, the trial court was required to grant the Chernusheks’

motion. See Tex. R. Civ. P. 166a(i); Sudan, 199 S.W.3d at 292.


Application


       On appeal, Conner reiterates the argument he made to the trial court, that the

Chernusheks’ motion admitted facts providing more than a scintilla of probative evidence

to raise a genuine issue of material fact as to the essential elements of his claims. The

facts to which he refers, which we agree are stated in the Chernusheks’ motion for

summary judgment, are that Conner “was the owner” of the residence.1 Conner asserts

that his ownership of the home and his claim that the property was his homestead provide

sufficient evidence to show a material fact as to the essential elements of his claims. We

do not agree the fact Conner was the owner of the residence, together with reasonable

inferences from that fact, establish the existence of genuine issues of material fact

sufficient to defeat the Chernusheks’ motion.


Conner’s Causes of Action


       As we construe the record, Conner asserted claims of theft, breach of contract,

fraud and breach of fiduciary duty against the Chernusheks. We consider each claim,



       1
        We note that Conner’s response to the no-evidence summary judgment motion
contains some factual recitations. The response is unsworn and thus cannot serve as
competent summary judgment evidence. See, e.g., Alaniz v. Rebello Food & Beverage,
L.L.C., 165 S.W.3d 7, 14 n.12 (Tex.App.–Houston [14th Dist.] 2005, no pet.) (collecting
cases). Even were we to consider the statements in the response, we still would conclude
Conner has not raised a genuine issue of material fact as to the elements of any of his
asserted causes of action.

                                            4
beginning with his claim for theft. Conner argues that to prove theft a plaintiff must first

show he owned the property stolen, and reasons that evidence he owned the property

before its conveyance satisfies that burden. We need not discuss that contention, because

the Chernusheks’ motion challenged all the elements of Conner’s causes of action, and

the evidence to which he points does not even arguably address all the elements of theft.


        Under section 134.002(2) of the Texas Civil Practices and Remedies Code, theft

is defined as “unlawfully appropriating property or unlawfully obtaining services as

described by Section 31.03, 31.04, 31.05, 31.07, 31.11, 31.12, 31.13, or 31.14" of the

Texas Penal Code. Tex. Civ. Prac. & Rem. Code Ann. § 134.002(2) (Vernon 2005).

Section 31.03 is the only Penal Code section of those listed that arguably applies here.

It states:


       (a) A person commits an offense if he unlawfully appropriates property with intent
       to deprive the owner of the property.


       (b) Appropriation of property is unlawful if:


              (1) it is without the owner’s effective consent;


              (2) the property is stolen and the actor appropriates the property
              knowing it was stolen by another; or


              (3) property in the custody of any law enforcement agency was
              explicitly represented by any law enforcement agent to the actor as
              being stolen and the actor appropriates the property believing it was
              stolen by another.




                                              5
      See Tex. Penal Code Ann. § 31.03 (Vernon 2003). The summary judgment record

contains no evidence of any conduct by the Chernusheks that would constitute theft under

section 31.03, or any of the other enumerated sections, of the Texas Penal Code. Even

indulging in every reasonable inference in Conner’s favor and resolving any doubts against

the Chernusheks, the statements and facts to which Conner points are inadequate to raise

a genuine issue of fact with regard to any of the elements of his theft cause of action.


      To prevail on his breach of contract claim, Conner was required to prove: (1) the

existence of a valid contract; (2) performance or tendered performance by Conner; (3)

breach of contract by the Chernusheks; and (4) damages sustained as a result of the

breach. Paragon General Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 882

(Tex.App.–Dallas 2007, no pet.); Valero Marketing & Supply Co. v. Kalama Int’l, 51 S.W.3d

345, 351 (Tex.App.–Houston [14th Dist.] 2006, pet. denied). Conner’s response does not

point to evidence of any of these elements.


      The essential elements of his claim of fraud against the Chernusheks were: (1) the

Chernusheks made a false representation to Conner; (2) the representation was material;

(3) when the Chernusheks made the representation, they knew the representation was

false; (4) the Chernusheks made the representation with the intent that Conner act on it;

(5) Conner relied on the representation; and (6) the representation caused Conner injury.

Ernst & Young v. Pacific Mut. Life. Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). Again, even

indulging in every reasonable inference from the evidence and resolving any doubts

against the Chernusheks, the record lacks evidence of any of the elements of fraud.



                                              6
       Last, Conner’s breach of fiduciary duty claim against the Chernusheks required that

he prove: (1) a fiduciary relationship between Conner and the Chernusheks; (2) the

Chernusheks breached their fiduciary duty to Conner; and (3) the Chernusheks’ breach

caused injury to Conner or benefit to the Chernusheks. Lundy v. Masson, 260 S.W.3d

482, 501 (Tex.App.–Houston [14th Dist.] 2008, pet. denied); Jones v. Blume, 196 S.W.3d

440, 447 (Tex.App.–Dallas 2006, pet. denied).          Indulging in Conner’s favor every

reasonable inference, the undisputed facts that he is the adult son of Lola Chernushek and

conveyed the property to her do not raise an issue of fact as to her breach of a fiduciary

relationship.


       Because Conner failed to satisfy his burden to respond to the Chernusheks’ no-

evidence motion for summary judgment by pointing to evidence raising a genuine issue of

material fact as to one or more of the essential elements of his claims, the trial court

properly granted the motion. Tex. R. Civ. P. 166(a)(i). We overrule Conner’s first issue.


Due Process Violation


       Conner also appears to raise an issue challenging the trial court’s action of deciding

the Chernusheks’ no-evidence motion for summary judgment without holding a hearing.

He seems to contend that in doing so, the trial court violated his due process rights.


        Since a summary judgment is based solely on the parties’ pleadings, discovery

responses, sworn affidavits and other valid summary judgment evidence, and since no new

evidence may be received at an oral hearing, and oral testimony may not be considered,

the decision whether to grant an oral hearing on a summary judgment motion is

                                             7
discretionary with the trial court. Moody v. James, No. 06-08-00132-CV, 2009 WL 127866

(Tex.App.–Texarkana Jan. 21, 2009, pet. denied) (mem. op.); Giese v. NCNB Tex. Forney

Banking Ctr., 881 S.W.2d 776, 783 (Tex.App.–Dallas 1994, no writ); Adamo v. State Farm

Lloyds Co., 853 S.W.2d 673, 677 (Tex.App.–Houston [14th Dist.] ), writ denied per curiam,

864 S.W.2d 491 (Tex.1993), cert. denied, 511 U.S. 1053, 114 S.Ct. 1613, 128 L.Ed.2d 340

(1994). Conner received notice of the motion, had a reasonable opportunity to present his

written response, and did so. We do not agree his right to due process was violated. See

Whiteside v. Ford Motor Credit Co., 220 S.W.3d 191, 194 (Tex.App.–Dallas 2007, no pet.)

(rejecting similar contention).


Scheduling Order


       Last, Conner raises a complaint concerning the trial court’s scheduling order. By

way of this complaint, Conner appears to argue he was not allowed proper time in which

to conduct discovery and argues the first scheduling order was deficient and inconsistent.

Conner contends this case should “simply start over from the very beginning with a brand

new trial date set, as well as new deadlines for witness lists, discovery, etc.”


       A party contending that he has not had an adequate opportunity for discovery before

a summary judgment hearing must file either an affidavit explaining his need for additional

discovery or a verified motion for continuance. Cooper v. Circle Ten Council Boy Scouts

of America, 254 S.W.3d 689, 696 (Tex.App.–Dallas 2008, no pet.). Conner filed neither.2

       2
          Conner also acted pro se in the trial court. He emphasizes his status as a layman
and his lack of familiarity with court procedures. Although we may read pro se appellate
briefs liberally, Tex. R. App. P. 38.9; Tex. R. App. P. 38.1(e); Sterner v. Marathon Oil Co.,

                                             8
We see no abuse of discretion in the timing of the trial court’s consideration of the motion

for summary judgment.


       We overrule Conner’s additional issues and affirm the judgment of the trial court.




                                                        James T. Campbell
                                                             Justice




767 S.W.2d 686, 690 (Tex. 1989), the law is clear that a party proceeding pro se must
“comply with all applicable procedural rules.” Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d
167, 169 (Tex.App.–Texarkana 1997, no pet.). See also Harris v. Showcase Chevrolet,
231 S.W.3d 559, 561 (Tex.App.–Dallas 2007, no pet.). As this court has observed, if that
were not true, pro se litigants would be afforded an unfair advantage over those
represented by counsel. Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex.App.–Amarillo
1998, pet. denied).

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