Opinion
No. 05-10-01426-CV
02-15-2012
RODNEY JOHNSON, Appellant v. AT&T SERVICES, INC., Appellee
AFFIRM; Opinion issued February 15, 2012
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 09-02437-K
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Morris
In this appeal, we determine whether the trial court erred in granting a take-nothing summary judgment in Rodney Johnson's employment discrimination lawsuit against AT&T Services, Inc. Representing himself on appeal without an attorney, appellant presents seven issues, which we describe below. For the reasons that follow, we affirm the trial court's judgment.
I.
Appellant filed this lawsuit after he was terminated from his position with AT&T as a supervisor in the bill validation department. In his first amended and supplemental petition, he asserted claims for sex discrimination, sexual harassment, religious discrimination, religious harassment, and retaliation. Appellee filed a motion for summary judgment with respect to all of appellant's causes of action asserting both traditional and no-evidence grounds. Appellant filed a response to the motion. The response specifically indicated, "After conducting written discovery and reviewing the deposition of [appellant] as well as the transcript of recorded conversations between [appellant] and his supervisor, Pamela Armstrong, [appellant] will now only pursue his claim of sex discrimination." Appellant's affidavit was the only evidence presented in support of his response. The trial court granted appellee's motion in its entirety. Appellant timely appealed.
On April 30, 2010, the trial court had granted an earlier motion for summary judgment and dismissed all of appellant's claims with prejudice. On July 19, 2010, however, the trial court granted appellant's motion for new trial and vacated its order of April 30. Appellee then filed "Defendant's Second Hybrid Motion for Summary Judgment And Brief in Support." It is the trial court's order on this motion for summary judgment from which appellant now appeals.
II.
In his first issue, appellant contends the trial judge should have recused himself from the case because an attorney from the law firm representing appellee is listed as an endorser for the judge's 2010 political campaign. Rule 18a of the Texas Rules of Civil Procedure addresses the recusal of judges. Tex. R. Civ. P. 18a. Under this rule, a party seeking recusal must file a verified motion at least ten days before the date set for the trial or other hearing stating the particular grounds why the judge should not hear the case. Tex. R. Civ. P. 18a(a). The procedural requirements for recusal are mandatory and failure to file a proper motion will result in waiver of the recusal issue on appeal. See McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex. App.-Houston [1st Dist.] 1995, writ denied). Our review of the record reveals that appellant failed to comply with these mandatory requirements. Appellant has therefore waived his right to complain that the judge should have recused himself. See id. We resolve appellant's first issue against him.
Appellant filed an "Affidavit of Judicial Misconduct" with the trial court on November 5, 2010 after the trial court rendered its summary judgment order. To the extent the affidavit can be construed as a request for recusal, it did not conform to the mandatory requirements of rule 18a.
In his second and third issues, appellant complains summary judgment was improper because appellee withheld evidence in its possession refuting appellee's claim that appellant was terminated for missing due dates, lack of knowledge, and poor performance. In his fourth issue, appellant asserts that his own attorneys failed to depose witnesses and properly present all evidence on his behalf. Appellant did not raise any of these issues in his summary judgment response. We cannot reverse a summary judgment based on arguments not expressly presented to the trial court by written motion or other response to the summary judgment motion. See Tex. R. Civ. P. 166a(c); City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Accordingly, we resolve appellant's second, third, and fourth issues against him.
In his amended brief, however, appellant suggests that audio devices and audio transcriptions had been given to his attorneys before the trial court's second summary judgment order. In fact, appellant's response to appellee's second summary judgment motion indicates that appellant's counsel reviewed the transcript of recorded conversations between appellant and his supervisor, Pamela Armstrong.
In his reply brief discussing the alleged withholding of evidence, appellant also requests that the statute of limitations be tolled due to appellee's fraudulent concealment. We do not consider arguments raised for the first time in reply briefs. See Dallas Cty v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.-Dallas 2006, pet. denied).
In his fifth, sixth, and seventh issues, appellant asserts there is sufficient evidence to defeat summary judgment on his claims for religious discrimination, sex discrimination, and retaliation. As noted above, in his response to appellee's motion for summary judgment, appellant specifically stated he was pursuing only his claim of sex discrimination. Appellant's response did not present any evidence or argument in opposition to appellant's no-evidence summary judgment motion on his religious discrimination and retaliation claims. He is precluded, therefore, from contesting the trial court's summary judgment on these claims on appeal. See Tex. R. Civ. P. 166a(c). Thus, the only issue remaining for our consideration is appellant's challenge to the trial court's summary judgment on his sex discrimination claim.
We review challenges to a trial court's summary judgment under well-known standards. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000) (traditional summary judgment); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (no-evidence summary judgment). Under the "ARGUMENT" portion of his amended brief, appellant's entire discussion and legal analysis of the summary judgment on his sex discrimination claim consist of three sentences. He does not cite any legal authority relating to a claim of sexual discrimination or the applicable burden-shifting analysis applicable in the context of a summary judgment proceeding. He also fails to provide any analysis or discussion with respect to what evidence he contends creates a fact issue on each challenged element of his sex discrimination claim. Rule 38.1(i) of our rules of appellate procedure require 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(i). These rules apply with equal force to those litigants who choose to represent themselves on appeal without an attorney. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.-Dallas, no pet.). Because appellant has failed to comply with our appellate briefing requirements, his challenge to the trial court's summary judgment on his sex discrimination claim is not entitled to review. See id. at 896-97.
We notified appellant previously that his brief was deficient and instructed him to file an amended brief that complied with our rules of appellate procedure. The following is appellant's argument on this issue as it appears in his amended brief:
IV. The 192nd District Court erred in dismissing the case due to no evidence because evidence exists.
We affirm the trial court's judgment.
JOSEPH B. MORRIS
JUSTICE
101426F.P05
The 192nd District Court erred in dismissing the case due to no evidence because evidence exists and is sufficient to reverse the judgment. Rodney Johnson is convinced that additional evidence is being withheld. Otherwise, a 'Confidentiality Agreement' in favor of the defendant would not have been signed without Rodney Johnson's knowledge by Ms. Lori Carr, Judge Craig Smith, and Mr. F. Benjamin Riek III on September 7, 2010.