Hossain Baghvardani, Appellant v. Carmen Wilson, Appellee (2015)

MEMORANDUM OPINION

Appellant Hossain Baghvardani appeals from a summary judgment granted in favor of appellee Carmen Wilson.   We affirm the trial court's summary judgment.

Baghvardani filed a pro se personal injury suit against Wilson on June 13, 2013, for injuries he claims to have sustained in a traffic accident that occurred on June 15, 2011.   Wilson was served with process on December 15, 2013, and filed an answer on January 3, 2014.   A few weeks later Wilson moved for summary judgment on the ground that Baghvardani's claims were barred by the two-year statute of limitations for negligence claims because Wilson was not served with process until six months after limitations expired, and Baghvardani failed to exercise due diligence in obtaining issuance and service of citation.   Baghvardani did not file a response to Wilson's motion.   After a hearing, the trial court granted Wilson's motion and dismissed Baghvardani's claims.

On appeal Baghvardani argues that summary judgment was improper because he was diligent in attempting to serve Wilson, but was unable to serve her sooner because she was out of the country.   To support his argument Baghvardani relies solely on the following statement he made to the trial court at the summary-judgment hearing, shown in context:

THE COURT:  [Wilson's] motion was filed on January the 31st, 2014.   Mr. Baghvardani, did you ever file a response to that motion?

MR. BAGHVARDANI:  I come here, I talk to Your Honor, and I had a letter that said 28 of October,[1] and after that I tried to find Ms. Wilson, but I couldn't find her.   I sent two more people and they couldn't find her.   And, finally, December 15th, when I find her, she said her mother, she passed away, and she went to Mexico, and she arrived same day when I saw her.

(Emphasis added.)

We notified Baghvardani that his initial appellant's brief was defective in several respects, and that failure to file a brief that complied with the rules of appellate procedure could result in dismissal.   Baghvardani filed an amended brief, but the amended brief is also deficient in several respects, including because Baghvardani does not cite any relevant authority.   See Tex.R.App. P. 38.1(i) (brief must contain “appropriate citations to authorities”);  see also Bolling v. Farmers Branch Indep.   Sch. Dist., 315 S.W.3d 893, 896 (Tex.App.—Dallas 2010, no pet.)  (“[E]xisting legal authority applicable to the facts and the questions we are called on to answer must be accurately cited.”).  “If we are not provided with existing legal authority that can be applied to the facts of the case, the brief fails.”  Bolling, 315 S.W.3d at 896.

Moreover, to support his argument, Baghvardani relies upon the statement quoted above, which he made to the trial court during the hearing on Wilson's motion for summary judgment.   That statement, however, is not competent summary-judgment evidence, and we are precluded from considering it on appeal.   See Tex.R. Civ. P. 166(a)(c) (oral testimony is not permitted at summary-judgment hearings, and “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal”).

Because appellant's brief does not comply with the rules of appellate procedure, and because we are precluded from considering the only statement he relies upon, we affirm the trial court's summary judgment.   See Crouch v. Continental Cas. Co., No. 05–06–00605–CV, 2007 WL 2028761, at *1 (Tex.App.—Dallas July 16, 2007, pet. denied) (mem.op.) (affirming judgment after concluding appellant waived all issues for inadequate briefing).

FOOTNOTES

1.   The record contains a notice of intent to dismiss stating that the case was set for dismissal hearing by submission on Monday, October 28, 2013.

Opinion by Justice Lang–Miers