Ho v. University of Texas at Arlington, 07-98-0062-CV

CourtCourt of Appeals of Texas
Citation984 S.W.2d 672
Docket NumberNo. 07-98-0062-CV,07-98-0062-CV
Parties132 Ed. Law Rep. 560 Su Inn HO, Appellant, v. The UNIVERSITY OF TEXAS AT ARLINGTON, et al., Appellees.
Decision Date04 November 1998

Page 672

984 S.W.2d 672
132 Ed. Law Rep. 560
Su Inn HO, Appellant,
No. 07-98-0062-CV.
Court of Appeals of Texas,
Nov. 4, 1998.

Page 679

Su Inn Ho, Arlington, pro se.

Dan Morales, Atty. Gen., Craig Carter, Asst. Atty. Gen., Austin, for appellees.

Before BOYD, C.J., and DODSON and QUINN, JJ.

BOYD, Chief Justice.

In this appeal, appellant Su Inn Ho (Ho), acting pro se, challenges a summary judgment in favor of the University of Texas at Arlington (UTA), Bob F. Perkins, Richard B. Timmons, Krishnan Rajeshwar, and Reed Blau, appellees. In the suit giving rise to the appeal, Ho alleged numerous causes of action arising out of her failure to receive her doctoral degree from UTA. In five points, she asserts the trial court erred in granting appellees' plea to the jurisdiction and motion for summary judgment, in sustaining appellees' objections to her summary judgment evidence, in delaying the trial date in order to further consider appellees' motions, and in taxing court costs against her. For reasons we later recount, we affirm the trial court judgment in part and sever, reverse and remand in part.

Initially, it is well settled that pro se litigants are held to the same standards as licensed attorneys and they must comply with applicable laws and rules of procedure. Greenstreet v. Heiskell, 940 S.W.2d 831, 834 (Tex.App.--Amarillo 1997, no writ), reh'g denied, 960 S.W.2d 713 (per curiam). The rationale for the rule is that if pro se litigants were not required to comply with applicable procedural rules, they would be given an unfair advantage over litigants represented by counsel. Id. at 835 (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978)).

In August 1982, Ho enrolled as a graduate student at UTA to study chemistry. Nearing graduation in 1984, Ho decided to continue and seek a Doctor of Applied Science from UTA. Over the next five years, Ho was enrolled in UTA's doctoral program, but in 1989, she was dismissed from the program without earning her degree. In 1990, she applied for, and was awarded, a master's degree. However, unhappy about the time and money she had expended in attempting to attain a doctoral degree, Ho filed this suit against appellees. In her fifth amended original petition, Ho sought recovery for breach of an agreement formed by the graduate catalogue, breach of an oral agreement, breach of an implied agreement, recovery under a theory of quantum meruit and unjust

Page 680

enrichment, fraudulent representations and omissions, and violations of the Due Course of Law and the Equal Protection Clauses of the Texas Constitution.

In her first and third points, Ho challenges the October 16, 1997 order of the trial court granting appellees' plea to the jurisdiction of the court to consider her breach of contract claims. Noting that on January 14, 1997, the trial court entered a written order overruling that plea to the jurisdiction, Ho argues that order was a final judgment disposing of all parties and issues to the case. Thus, she continues, inasmuch as the October 16, 1997 order was rendered well beyond the trial court's 30-day plenary power to set aside, modify, or amend judgments, the trial court acted beyond its jurisdictional powers.

Rule 301 of the Texas Rules of Civil Procedure provides that there shall be only one final judgment rendered in any cause except where it is specially provided by law. A judgment is final when it disposes of all controverted issues concerning all parties to the suit. Gulf, C. & S.F. Ry. Co. v. Fort Worth & N.O. Ry. Co., 68 Tex. 98, 2 S.W. 199, 200 (1886), reh'g denied, 68 Tex. 98, 3 S.W. 564 (Tex.1887). Thus, any order rendered during a lawsuit which does not dispose of all issues regarding all parties is, of necessity, interlocutory. Campbell v. Campbell, 550 S.W.2d 164, 166 (Tex.Civ.App.--Austin 1977, no writ). Furthermore, when the terms of a final judgment conflict with those of an interlocutory order, the terms of the final judgment control. Dickson & Associates v. Brady, 530 S.W.2d 886, 887-88 (Tex.Civ.App.--Houston [1st Dist.] 1975, no writ).

In this case, the trial court's January 14, 1997 order was clearly interlocutory because it failed to dispose of all of Ho's causes of action. See Gulf, C. & S.F. Ry. Co., 2 S.W. at 200; Campbell, 550 S.W.2d at 166. Because the order was interlocutory, the trial court continued to have plenary power over all facets of the case and was thus free to vacate, modify, correct, or reform any previous order or judgment. Bergman v. West, 262 S.W.2d 435, 436 (Tex.Civ.App.--Waco 1953, no writ). Unlike the January 14 order, the later order did dispose of all parties and issues. It was, therefore, a final judgment which controlled the disposition of the case and effectively set aside the prior inconsistent order. Dickson & Associates, 530 S.W.2d at 887-88. That being so, the trial court did not err in executing the later order. Ho's first and third points are overruled.

In her second point, Ho challenges the trial court's sustention of appellees' objections to portions of her affidavit submitted in support of her response to the summary judgment motion. She also argues that the trial court erroneously granted the summary judgment because the summary judgment evidence showed fact questions existed.

After Ho filed her response and her supporting affidavit, appellees objected to four hearsay statements contained in the affidavit, namely, statements made by a postdoctoral student to her; regarding statements made by other students to her; regarding what she had heard about Professor Shelly; and statements made by Professor Reynolds to Ho. In its October 16 order, the trial court sustained these objections.

It is the rule that rulings concerning the admission or exclusion of summary judgment evidence are reviewed under an abuse of discretion standard. Sanders v. Shelton, 970 S.W.2d 721, 726-27 (Tex.App.--Austin 1998, pet. filed). Furthermore, the same standards and principles of evidence that are applicable in a trial on the merits are equally applicable in a summary judgment proceeding. United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). Thus, a hearsay statement that does not fall within one of the exceptions provided by statute or rule is inadmissible and, when contained within an affidavit, may not be considered as summary judgment evidence. See Tex.R.Evid. 802. The Texas Rules of Evidence define a hearsay statement as a statement other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). The four statements in Ho's affidavit were clearly hearsay and the trial court did not err in sustaining appellees' objections to those portions.

Page 681

Ho also argues that the summary judgment is erroneous because there were factual discrepancies within the summary judgment evidence which could not be resolved by summary judgment. In response, appellees assert that the record references made by Ho supporting her claim are to evidence attached to motions which she filed subsequent to the summary judgment which cannot be considered upon appellate review.

Rule 166a(c) provides that except on leave of the court, the non-movant may, not later than seven days prior to the day of hearing, file and serve opposing affidavits or other written responses. Tex.R.Civ. P. 166a(c). If such responses are not timely filed without an order of the court permitting the late filing, an appellate court must presume that the trial court did not consider such responses in making its judgment. INA of Texas v. Bryant, 686 S.W.2d 614, 615 (Tex.1985). Thus, the scope of our review must be limited to the evidence properly before the trial court at the time of the hearing on the motion. Dunn v. Southwestern Bell Tel. Co., 860 S.W.2d 571, 574 (Tex.App.--El Paso 1993, writ denied). The hearing on the motion was held on August 1, 1997. Because the record does not show any trial court orders permitting the late filing of summary judgment evidence, our review is limited to the motions, responses, and evidence filed no later than July 25, 1997.

Even so, Ho maintains, although new evidence was attached to her motion for new trial filed after July 25, 1997, this court may still review that evidence in making our decision because by including it in her motion for new trial, she had preserved error for our review. See Tex.R.Civ. P. 324(b)(1). Although Ho makes a cursory and implicit argument that the trial court abused its discretion in denying her motion for new trial because of newly discovered evidence, she does not further develop the argument by showing exactly how the trial court erred in its ruling in view of the record before it at the time. To be entitled to a new trial on the basis of newly discovered evidence, it is incumbent upon the party seeking the new trial to satisfy the court first, that the evidence has come to the knowledge of the party since the trial; second, that it could not have been sooner discovered by the exercise of reasonable diligence; third, that it is not cumulative; and fourth, that it is so material that it would probably produce a different result if a new trial was granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983); Conwill v. Gulf, C. & S.F. Ry. Co., 85 Tex. 96, 19 S.W. 1017, 1020 (1892). Without proper supporting argument and references, she has waived her challenge. Tex.R.App. P. 38.1(h); Missouri-Kansas-Texas R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 941 (1956) (citing to former Rule 418 of the Texas Rules of Civil Procedure).

When a defendant moves for summary judgment, he has the burden to prove the essential elements of his defense or affirmative defense as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979) (citing Swilley v. Hughes, 488 S.W.2d...

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