Date: 05-17-2012
Case Style: Gregory S. Strange v. Shane Allen
Case Number: 05-11-00881-CV
Judge: Joseph B. Morris
Court: Texas Court of Appeals, Fifth District on appeal from the 199th Judicial District Court, Collin County
Plaintiff's Attorney: Pro Se
Defendant's Attorney: Jason P. Bloom, DAvid H. Harper and Michelle Cannon Jacobs
Description: This is an appeal from the trial court's final judgment dismissing with prejudice Gregory Strange's lawsuit against several individuals, a corporation and a law firm. Strange sued Shane Allen, Pablo Fonolla, and Maan Hamdan, in their individual capacities and each in their capacity as an officer of HRsmart, Inc. In addition, Strange sued Jason Bloom, David Harper, and Michelle Jacobs, who were attorneys for HRsmart, Inc. He also sued HRsmart, Inc. and the law firm of Haynes and Boone, LLP. Strange, representing himself without an attorney in his appeal, complains that the trial court erred when it (1) did not respond to his motion to postpone the hearing on appellees' motion to dismiss or for summary judgment, (2) did not inquire into the failure of appellees to properly serve him with written notice of their application for a court hearing, and (3) granted appellees' motion based on pleadings that had been “invalidated” by Strange's filing of his first amended petition. For the reasons that follow, we conclude Strange has failed to establish any reversible error in connection with his complaints. Accordingly, we affirm the trial court's judgment.
Strange sued appellees asserting a claim for invasion of privacy after a “screenshot” of his Facebook profile appeared as an exhibit included in an amended petition in a different lawsuit that HRsmart, Inc. had filed against him. Appellees filed special exceptions to Strange's original petition and moved for a dismissal or for summary judgment asserting, among other things, that Strange's claims were barred by law and that repleading could not cure the defects. By letter dated June 15, 2011, appellees informed Strange that a hearing on their special exceptions and motion to dismiss or for summary judgment was scheduled for July 7, 2011. On June 16, Strange filed a motion to postpone the hearing to July 14. The record does not contain any disposition with respect to Strange's motion to postpone. On June 23, Strange filed an amended petition and a response to appellees' motion asserting his amended petition cured any pleading defects of which appellees complained. On July 7, appellees and Strange appeared for the hearing on appellees' special exceptions and motion. At the hearing, Strange argued appellees' motion should be denied and did not raise an objection to the failure of the trial court to rule on his motion to postpone the hearing. The trial court granted appellees' motion and dismissed Strange's lawsuit with prejudice. Strange timely filed this appeal.
We first address Strange's complaints about the trial court's failure to inquire whether appellees properly served him with notice of their application for a hearing and its failure to rule on his motion to postpone the July 7 hearing. Before we may review the merits of a complaint on appeal, the record must show that the complaint was made to the trial court by a timely request, objection or motion and that the trial court expressly or implicitly ruled on the request, objection or motion. See Tex. R. App. P. 33.1(a)(1) and (a)(2)(A). If the trial court refused to rule, appellant must show he objected to the refusal. See Tex. R. App. P. 33.1(a)(2)(B).
There is nothing in the record before us that suggests the trial court ruled on Strange's motion to postpone or that Strange brought the failure to rule on his motion to the trial court's attention. Moreover, it is undisputed that Strange actually appeared at the hearing that was the subject of his motion to postpone. See Footnote 1 At the hearing, Strange did not object to the trial court's failure to rule on his motion. He also argued the merits of appellees' special exceptions and motion to dismiss. Because Strange never objected to the trial court's failure to rule on his motion to postpone, he has waived these complaints. See Tex. R. App. P. 33.1(a). To the extent Strange complains about the lack of proper notice of the hearing, he waived this complaint when he appeared at the July 7 hearing. See Ex parte Linder, 783 S.W.2d 754, 758-89 (Tex. App.-Dallas 1990, orig. proceeding).
Strange also complains that the trial court erred in granting appellees' motion to dismiss based on his original pleading because Strange filed an amended petition that superseded his original complaint. The record reflects that Strange filed an amended petition on June 23, more than seven days before the July 7 hearing on appellees' motion. The trial court's order also recites that it reviewed the pleadings on file. Accordingly, we conclude that the trial court considered Strange's amended petition at the time it ruled on appellees' motion, and Strange's complaint to the contrary is without merit.
To the extent Strange claims the trial court erred because there is a common-law right to privacy entitling him to a remedy and the trial court was biased against him, we note the following. Strange's appeal brief does not address several of the grounds raised by appellees in their dismissal motion. Specifically, Strange does not address appellees' contentions that Strange's claims were barred as matter of law by absolute privilege, attorney immunity, and consent. No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes the alleged error probably caused rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals. See Tex. R. App. P. 44.1(a). Because Strange has not challenged each possible ground upon which appellees' dismissal motion could have been granted, he cannot establish reversible error with respect to the trial court's judgment. See id.; cf. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (failure of appellant to challenge all grounds for summary judgment on appeal precluded reversal of trial court judgmen
Outcome: We affirm the trial court's judgment.
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