NO. 05-10-00522-CV IN THE COURT OF APPEALS FIFTH JUDICIAL DISTRICT DALLAS, TEXAS REGINA SANDERS BRUCE, Appellant v. CLAYTON C. ELLIOTT, Appellee. On Appeal from the 256th District Court Trial Court No. 09-17302, Dallas County, Texas Honorable David Lopez, Presiding Judge APPELLANT S BRIEF Respectfully submitted by, GEORGANNA L. SIMPSON SBN 18400965 JEREMY C. MARTIN SBN 24033611 SIMPSON MARTIN, llp 1349 Empire Central Woodview Tower, Ste. 600 Dallas, Texas 75247 Phone: 214-905-3739 Fax: 214-905-3799 ATTORNEYS FOR APPELLANT REGINA S. BRUCE
IDENTITY OF PARTIES AND COUNSEL Appellant: Regina S. Bruce, Petitioner at trial Represented in the Georganna L. Simpson Appellate Court by: Texas Bar Number 18400965 Jeremy C. Martin Texas Bar Number 24033611 SIMPSON MARTIN, llp 1349 Empire Central Dr. Woodview Tower, Suite 600 Dallas, Texas 75247 Phone: 214-905-3739 Fax: 214-905-3799 Email: georganna@simpsonmartin.com Jeremy@simpsonmartin.com Previously represented in Ben C. Martin the Appellate Court and State Bar Number 13052400 the Trial Court by: Thomas Wm. Arbon State Bar Number 01284275 LAW OFFICES OF BEN C. MARTIN, L.L.P. 3219 McKinney Ave., Ste. 100 Dallas, Texas 75204 Represented in the John E. Alexander Trial Court by: Texas Bar Number 00994800 R. Scott Downing Texas Bar Number 06086700 McCurley, Orsinger, McCurley, Nelson & Downing L.L.P. 5950 Sherry Lane, Suite 800 Dallas, Texas 75225 Phone: 214-273-2400 Fax: 214-273-2470 Appellee: Clayton C. Elliott, Jr., Respondent at trial APPELLANT S BRIEF Page ii
Represented in the Rebecca Tillery Appellate Court by: Texas Bar Number 24060729 Koons, Fuller, Vanden Eykel & Robertson 2311 Cedar Springs, Suite 300 Dallas, Texas 75201 Phone: 214-871-2727 Fax: 214-871-0196 Represented in the Karen Blakely Turner Trial Court by: Texas Bar Number 02430500 Koons, Fuller, Vanden Eykel & Robertson 2311 Cedar Springs, Suite 300 Dallas, Texas 75201 Phone: 214-871-2727 Fax: 214-871-0196 APPELLANT S BRIEF Page iii
TABLE OF CONTENTS Identity of Parties and Counsel... i Index of Authorities... v Abbreviations and Record References... vii Statement of the Case... vii Issues Presented for Review... viii APPELLANT S BRIEF I. STATEMENT OF FACTS... 1 II. SUMMARY OF THE ARGUMENT... 3 III. ARGUMENT... 3 A. STANDARD OF REVIEW... 3 B. ISSUE ONE... 4 The trial court abused its discretion when it refused to consider Regina s amended affidavit and the summary judgment attached thereto, especially in light of Clayton s failure to file any written objections to the amended affidavit. 1. Defects in affidavits: form versus substance... 4 2. Regina submitted a supplemental affidavit as allowed by Texas Rule of Civil Procedure 166a(f)... 6 APPELLANT S BRIEF Page iv
C. ISSUE TWO... 9 The trial court s error was harmful and it abused its discretion when it granted Clayton s No-Evidence Motion for Summary Judgment because Regina brought forth more than a scintilla of probative evidence that the parties were common-law married. 1. Texas recognizes common-law marriages... 9 2. Regina brought forth more than a scintilla of evidence to establish a marriage between herself and Clayton... 9 PRAYER... 11 Certificate of Service... 12 APPENDICES: Tab 1: Trial Court s Memorandum Ruling dated February 1, 2010 Tab 2: Trial Court s Order on No Evidence Motion for Summary Judgment dated February 1, 2010 APPELLANT S BRIEF Page v
INDEX OF AUTHORITIES Case Law: 1. Coleman v. Woolf, 129 S.W.3d 744 (Tex. App. Fort Worth 2004, no pet.)... 6, 7 2. Columbia Rio Grande Reg l Hosp. v. Stover... 6 17 S.W.3d 387 (Tex. App. Corpus Christi 2000, no pet.). 3. DeLeon v. Gant... 5 773 S.W.2d 396 (Tex. App. San Antonio 1989), rev d on other grounds, 786 S.W.2d 259 (Tex. 1990). 4. Flores v. Flores, 847 S.W.2d 648 (Tex. App. Waco 1993, writ denied)... 9 5. Fortis Benefit v. Cantu... 5-6 170 S.W.3d 755, 759 (Tex. App. Waco 2005), rev d in part on other grounds, 234 S.W.3d 642 (Tex. 2007). 6. Gandara v. JP Morgan Chase Bank... 6 01-03-00926-CV, 2005 WL 615628 (Tex. App. Houston [1st Dist.] Mar. 17, 2005, no pet.). 7. Giese v. NCNB Texas Forney Banking Center... 5 881 S.W.2d 776 (Tex. App. Dallas 1994, no pet.). 8. Harrell v. Patel, 225 S.W.3d 1 (Tex. App. El Paso 2005, pet. denied)... 5 9. Hogan v. J. Higgins Trucking, Inc.... 4, 5 197 S.W3d 879 (Tex. App. Dallas 2006, no pet.). 10. Jones v. McSpedden, 560 S.W.2d 177 (Tex. Civ. App. Dallas 1977, no writ)... 5 11. King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003)... 3, 4, 11 12. Kotzur v. Kelly, 791 S.W.2d 254 (Tex. App. Corpus Christi 1990, no writ)... 5 13. Kyle v. Countrywide Home Loans, Inc.... 6 232 S.W.3d 355 (Tex. App. Dallas 2007, pet. denied). APPELLANT S BRIEF Page vi
14. Mathis v. Bocell... 4 982 S.W.2d 52 (Tex. App. Houston [1st Dist.] 1998, no pet.). 15. Osuna v. Quintana... 6 993 S.W.2d 201 (Tex. App. Corpus Christi 1999, no pet.). 16. Ritter v. Las Colonitas Condominium Ass n... 6 S.W.3d 2010 WL 2794395 (Tex. App Dallas 2010, no pet. h.). 17. Russell v. Russell, 865 S.W.2d 929 (Tex. 1993)... 9 18. Southland Corp. v. Lewis, 940 S.W.2d 83 (Tex. 1997)... 5 19. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009)... 3 20. Trusty v. Strayhorn, 87 S.W.3d 756 (Tex. App. Texarkana 2002, no pet.)... 7 21. White v. Bath... 6 825 S.W.2d 227 (Tex. App. Houston [14th Dist.] 1992, writ denied). 22. Youngstown Sheet & Tube v. Penn, 363 S.W.2d 230 (Tex. 1962)... 5 Statutes: 1. TEX. FAM. CODE ANN. 2.401... 9 Rules: 1. TEX. R. CIV. P. 166a... 4, 6, 11 2. TEX. R. EVID. 103... 5 Law Journals: 1. Robert W. Calvert... 4 No Evidence and Insufficient Evidence Points of Error, 38 TEX. L. REV. 361 (1960). APPELLANT S BRIEF Page vii
ABBREVIATIONS AND RECORD REFERENCES Abbreviations: 1. Appellant Regina S. Brucel shall be referred to as Regina or Appellant. 2. Appellee Clayton C. Elliott, Jr. shall be referred to as Clayton or Appellee. 3. Regina and Clayton shall be referred to collectively as the Parties. Record References: 1. The Clerk s Record will be referred to as CR and will be cited by page(s) (CR: ). 2. Appellant will refer to the Appendix as App. Tab with the appropriate numerical reference. STATEMENT OF THE CASE Nature of the Case: Proceedings in Trial Court: Trial Court Disposition: This case involved a common-law marriage and divorce. [CR1:8-16]. Regina filed for divorce from a common-law marriage. Clayton filed a No Evidence Motion for Summary Judgment in regards to the common-law marriage. [CR1:19-21]. The Honorable David Lopez granted Clayton s No Evidence Motion for Summary Judgment and severed out his claims for attorney s fees. [CR2:308; SCR5:3-4]. APPELLANT S BRIEF Page viii
ISSUES PRESENTED FOR REVIEW Issue One Whether the trial court abused its discretion when it refused to consider Regina s amended affidavit and the summary judgment attached thereto, especially in light of Clayton s failure to file any written objections to the amended affidavit. Issue Two The trial court s error was harmful and it abused its discretion when it granted Clayton s No-Evidence Motion for Summary Judgment because Regina brought forth more than a scintilla of probative evidence that the parties were common-law married. APPELLANT S BRIEF Page ix
APPELLANT S BRIEF TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS: Appellant, Regina S. Bruce ( Regina ), submits this Appellant s Brief. I. STATEMENT OF FACTS A. On or about August 1, 2004, Regina and Clayton C. Elliott, Jr. ( Clayton ) were common-law married. [CR1:9]. B. On or about June 9, 2009, Regina and Clayton ceased to live together as husband and wife. [CR1:9]. C. On September 21, 2009, Regina filed for a divorce from Clayton. [CR1:8-16]. Subsequently, Clayton filed a general denial and raised no affirmative defenses. [CR1:17-18]. D. On December 21, 2009, Clayton filed his Motion for No Evidence Summary Judgment in which he denied the existence of a marriage between himself and Regina. [CR1:19-21]. E. On January 15, 2010, Regina timely filed her response to which she attached a number of affidavits. [CR2:269-70; CR1:22-262; CR2:263-68]. F. On January 25, 2010, without prior notice to Regina, Clayton filed his objections to Regina s summary judgment evidence [CR2:271-77] and a brief in support of his motion. [CR2:277-84]. On this same date, the trial court heard Clayton s Motion for No Evidence Summary Judgment. Prior to this hearing, the trial court heard and APPELLANT S BRIEF Page 1
sustained thirty-eight separate objections made by Clayton to the form of Regina s affidavit. [CR2:300-303]. At the conclusion of the hearing, the trial court took Clayton s motion under advisement. [CR3:313]. G. On January 28, 2010, Regina filed her First Supplemental Response to Respondent s Motion for No Evidence Summary Judgment. [CR2:298-99]. Attached to this supplemental response were Regina s supplemental affidavit and seven other affidavits as additional summary judgment proof. [CR2:284-86, 287-97]. H. On February 1, 2010, the trial court issued its Memorandum Ruling, in which it stated that it did not consider Regina s supplemental documents filed after the argument on the motion, and in which it held that Clayton was entitled, as a matter of law, to summary judgment that he and Regina were not married. [CR2:304]. On this same day, the trial court signed its Order Granting No Evidence Summary Judgment, which reserved the issue of attorney s fees. [CR2:308]. I. On February 25, 2010, Regina filed both a Motion for New Trial. [CR3:312-599] and a Motion to Reconsider [CR4:600-887]. J. On April 30, 2010, Regina filed her Notice of Appeal. [CR5:891-92]. K. On May 27, 2010, the trial court signed an Agreed Order to Sever and Abate the Case Pending Resolution of the Related Appeal, the effect of which was to confirm the February 1, 2010 order granting Clayton a summary judgment as a final and appealable order. [SCR5:3-4]. APPELLANT S BRIEF Page 2
II. SUMMARY OF THE ARGUMENT The rules of civil procedure allow for the correction of defect as to form. Therefore, the trial court abused its discretion by refusing to consider Regina s amended affidavit. When Clayton failed to object to any defects in Regina s amended affidavit, he waived those objections. The trial abused its discretion when it granted Clayton a summary judgment that, as a matter of law, Regina and Clayton were not married because Regina s amended affidavit and accompanying summary judgment evidence provided more than a scintilla of evidence that such a marriage existed. A. STANDARD OF REVIEW. III. ARGUMENT A no-evidence summary judgment is essentially a pretrial directed verdict because it requires the non-movant to present evidence sufficient to raise a genuine issue of material fact on each challenged element. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). This Court must apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as it applies in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, this Court must review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. King Ranch, Inc., 118 S.W.3d at 751. A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a APPELLANT S BRIEF Page 3
vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. (citing Robert W. Calvert, No Evidence and Insufficient Evidence Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)). Therefore, a trial court improperly grants a no-evidence summary judgment if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX. R. CIV. P. 166a(i); King Ranch, Inc., 118 S.W.3d at 751. B. ISSUE ONE: The trial court abused its discretion when it refused to consider Regina s amended affidavit and the summary judgment attached thereto, especially in light of Clayton s failure to file any written objections to the amended affidavit. 1. Defects in affidavits: form versus substance. Texas Rule of Civil Procedure 166a(f) provides in pertinent part as follows:.... Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. TEX. R. CIV. P. 166a(f) (emphasis added). A defect is formal (and the objection to it is waivable) if the summary-judgment proof is competent but inadmissible; a defect is substantive (and the objection to it is not waivable) if the summary-judgment proof is incompetent. Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App. Houston [1st Dist.] 1998, no pet.). For preservation purposes, an appellate court treats a party s objections to defects in form and substance of a document differently. Hogan v. J. Higgins Trucking, Inc., 197 S.W3d 879, 883 (Tex. App. Dallas 2006, no pet.). Defects in form of an affidavit must be objected to, and the opposing party must have the opportunity to amend. Id. The failure to obtain a ruling on an objection to a defect in form waives the objection. Id. APPELLANT S BRIEF Page 4
The various courts of appeal have held the following objections to be ones of form, not substance, which absent an objection are waived: Defects in the authentication of attachments to summary judgment affidavits. Absent objection, defects in the authentication of attachments in support of a motion for summary judgment or response are waived. See Kotzur v. Kelly, 791 S.W.2d 254, 256 (Tex. App. Corpus Christi 1990, no writ); see e.g., Youngstown Sheet & Tube v. Penn, 363 S.W.2d 230, 234 (Tex. 1962) (unauthenticated copy of an operating agreement); Giese v. NCNB Texas Forney Banking Center, 881 S.W.2d 776, 781-82 (Tex. App. Dallas 1994, no pet.) (unauthenticated certificate of title); DeLeon v. Gant, 773 S.W.2d 396, 398 (Tex. App. San Antonio 1989), rev d on other grounds, 786 S.W.2d 259 (Tex. 1990) (uncertified documents); Jones v. McSpedden, 560 S.W.2d 177, 179-80 (Tex. Civ. App. Dallas 1977, no writ) (unauthenticated copy of an indemnity agreement). Hearsay evidence. Unless a party objects to hearsay evidence, the evidence will support a summary judgment. TEX. R. EVID. 103(a)(1), 802; see Harrell v. Patel, 225 S.W.3d 1, 6 (Tex. App. El Paso 2005, pet. denied); see e.g. Southland Corp. v. Lewis, 940 S.W.2d 83, 85 (Tex. 1997) (hearsay excluded because party objected); Fortis Benefit v. Cantu, 170 S.W.3d 755, 759 (Tex. App. Waco 2005) (evidence not objected to on basis of hearsay sufficient to support summary judgment), rev d in part on other grounds, 234 S.W.3d 642 (Tex. 2007); Columbia Rio Grande Reg l Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex. App. Corpus Christi 2000, no pet.) (hearsay objection waived because not specific enough). APPELLANT S BRIEF Page 5
Not best evidence. Objection on ground that it was not the best evidence, failed because no ruling obtained on the objection. See Ritter v. Las Colonitas Condominium Ass n, S.W.3d 2010 WL 2794395, at *3 n.3 (Tex. App Dallas 2010, no pet. h.); Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 358 (Tex. App. Dallas 2007, pet. denied); Gandara v. JP Morgan Chase Bank, 01-03- 00926-CV, 2005 WL 615628, at *4 (Tex. App. Houston [1st Dist.] Mar. 17, 2005, no pet.) (failure to obtain ruling that affidavit was not best evidence waived when party fails to obtain a ruling in trial court). The best-evidence rule applies only when a party seeks to prove the contents of a disputed document not in evidence. Osuna v. Quintana, 993 S.W.2d 201, 206 (Tex. App. Corpus Christi 1999, no pet.); White v. Bath, 825 S.W.2d 227, 231 (Tex. App. Houston [14th Dist.] 1992, writ denied). 2. Regina submitted a supplemental affidavit as allowed by Texas Rule of Civil Procedure 166a(f). The vast majority of Clayton s objections to Regina s original affidavit in support of her response to his no-evidence motion to summary judgment pertained to the admissibility of the exhibits attached to her affidavit and included the best evidence rule, hearsay, and lack of authentication. As set forth above, all of these types of objections are ones of form, rather than substance. Accordingly, pursuant to Texas Rule of Civil Procedure 166a(f), Regina had to be given the opportunity to amend. See TEX. R. CIV. P. 166a(f); Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex. App. Fort Worth 2004, no pet.) (citing Trusty v. Strayhorn, 87 S.W.3d 756 at 763-64 (Tex. App. Texarkana 2002, no pet.) (holding that if APPELLANT S BRIEF Page 6
objections are made to the nonmovant s summary judgment evidence, the nonmovant must seek an opportunity to amend its summary judgment proof). In Coleman, the appellee filed a motion for no-evidence summary judgment and objected to the form of the affidavit filed by the appellant in opposition to the motion. Coleman, 129 S.W.3d at 746. After sustaining the appellee s objections to the appellant s affidavit, the trial court granted the summary judgment. Id. On appeal, the appellant argued that the trial court erred by not providing her an opportunity to cure the formal defects in her affidavit pursuant to Texas Rule of Civil Procedure 166a(f). Id. at 748-49. The court of appeals noted as follows that the appellant had failed to avail herself of the opportunity: Here, [the appellant] took no action in the trial court to indicate that she desired the opportunity to correct any defects in [the] affidavit. She did not request or file a motion for continuance; she did not tender an amended affidavit or seek leave to file an amended affidavit during the two weeks that the trial court had [the appellee s] motion for summary judgment under advisement. Id. at 750. For these reasons, the court held that the trial court did not err when it failed to grant the unrequested relief of providing the appellant with the opportunity to cured the defects in the affidavit. Id. Here, unlike the appellant in Coleman, pursuant to Texas Rule of Civil Procedure 166a(f), three days after the summary judgment hearing and three days before the trial court issued its memorandum ruling Regina filed her First Supplemental Response to Respondent s Motion for No Evidence Summary Judgment. [CR2:298-99]. Attached to this supplemental response was Regina s supplemental affidavit, along with seven other affidavits as additional summary judgment proof. [CR2:284-86, 287-97]. The only response to the filing of APPELLANT S BRIEF Page 7
Regina s supplemental response and affidavit was a letter to the trial court from Clayton, which challenged only the filing of the additional affidavits and made no objection to Regina s supplemental affidavit. [CR4:880]. On February 1, 2010, the trial court forwarded a Memorandum Ruling to the parties, which provided in pertinent part as follows: The following is the ruling on the Respondent s Motion for No Evidence Summary Judgment. The Court did not consider the supplemental documents filed after the argument on the summary judgment. [CR2:304]. On this same day, the trial court signed its Order Granting No Evidence Summary Judgment, which reserved the issue of attorney s fees. [CR2:308]. Because Clayton failed to raise any objections to Regina s supplemental affidavit, he waived any objections that he may have had to the form of that affidavit. The trial court abused its discretion by refusing to consider Regina s un-objected to supplemental affidavit as provided for by Texas Rule of Civil Procedure 166a(f). The harm suffered by Regina as a result of the trial court s abuse of discretion is evident from the record because the summary judgment rendered by the trial court deprived of her of her right to a divorce. Therefore, this Court should sustain Regina s first issue and reverse and render that Clayton is not entitled to a summary judgment as a matter of law. In the alternative, this Court should reverse and remand this matter for the trial court to reconsider Clayton s no-evidence motion for summary judgment in light of Regina s supplemental affidavit. APPELLANT S BRIEF Page 8
C. ISSUE TWO: The trial court s error was harmful and it abused its discretion when it granted Clayton s No-Evidence Motion for Summary Judgment because Regina brought forth more than a scintilla of probative evidence that the parties were commonlaw married. 3. Texas recognizes common-law marriages. Texas recognizes the validity of informal, or common-law marriages. TEX. FAM. CODE ANN. 2.401; Russell v. Russell, 865 S.W.2d 929, 931 (Tex. 1993) (Texas has recognized common-law marriages since 1847, although recognition is grudging ). To establish a valid common-law marriage in Texas, a party must prove three necessary elements: (1) The parties agreed to be married; (2) After the agreement, the parties lived together in Texas as husband and wife; and (3) The parties represent to others in Texas that they were married. TEX. FAM. CODE. ANN. 2.401; Russell, 865 S.W.2d at 931; Flores v. Flores, 847 S.W.2d 648, 650 (Tex. App. Waco 1993, writ denied). 4. Regina brought forth more than a scintilla of evidence to establish a marriage between herself and Clayton. The following summary judgment evidence provides some evidence that Regina and Clayton were married: Both Regina and Clayton represented to Zary T. Tarjan that they were husband and wife. [CR2:263-64]. Kathy Kurtin Stewart introduced them to third parties as husband and wife, without objection from either party. [CR2:265]. APPELLANT S BRIEF Page 9
Suzanne Boyd-Chapman heard Clayton refer to Regina as his wife, heard Kathy Stewart introduce Clayton and Regina to a third party as husband and wife without either Clayton or Regina correcting her, and believed that Clayton and Regina were married. [CR2:266-67]. Although some objections were made to this affidavit [CR2:271-75], the trial court overruled the objections to these specific statements. [CR2:303]. Clayton and Regina begin cohabitating full time beginning in approximately April 1999. [CR4:866]. Clayton and Regina built a house together. CR4:866]. Clayton paid Regina s medical bills. [CR4:866]. The following documents attached to Regina s original affidavit and subsequently authenticated by her supplemental affidavits show that the parties cohabitated: o Ex. A. An insurance card for Clayton Elliott and Regina Bruce. [CR4:615]. o Ex. C. The Woodland Neighborhood directory. [CR4:617-22]. o Ex. G. A menu for a dinner hosted by Clayton and Regina. [CR4:637]. o Ex. J. Series of emails between Clayton, Regina, and decorator regarding Christmas decorations for their residence. [CR4:651-80]. o Ex. K. Series of emails between Clayton and Regina regarding remodeling their residence. [CR4:681-728]. o Ex. BB. Vehicle Registration Renewal Notice and automotive lease addressed to Clayton and Regina at their residence. [CR4:791-800]. APPELLANT S BRIEF Page 10
The Brokaw family believed that Clayton and Regina were married as evidenced by a Christmas card addressed to Clayton and Regina in December 2007. [CR4:623-25]. Clayton s employer, Hines, believed Regina to be Clayton s spouse. [CR4:632, 730, 745-65]. In 2004, Clayton and Regina were identified as underwriters and as a Silver Baron Couple. [CR4:648-50]. Clayton paid income tax for both himself and Regina. [CR4:741-44]. Reviewing all of the above evidence in the light most favorable to Regina and disregarding all contrary evidence and inferences, Regina brought forth more than a scintilla of probative evidence that she and Clayton were married. Therefore, the trial court improperly granted Clayton a no-evidence summary judgment. See TEX. R. CIV. P. 166a(i); King Ranch, Inc., 118 S.W.3d at 751. Accordingly, this Court should sustain Regina s second issue and render that the trial court had to deny Clayton s motion for no evidence summary judgment. PRAYER WHEREFORE, PREMISES CONSIDERED, for all of the reasons briefed and set forth herein, Appellant, Regina S. Bruce, respectfully requests this Court to reverse the trial court s February 1, 2010 Order Granting No Evidence Summary Judgment, render that Clayton Elliot was not entitled to a summary judgment as a matter of law, and remand for a trial on the merits of her divorce action. In the alternative, Regina S. Bruce respectfully requests remand the cause for further proceedings regarding Clayton Elliot s motion for no evidence summary judgment in light of her supplemental affidavit. Appellant further APPELLANT S BRIEF Page 11
requests such other relief, both general and special, at law or in equity, to which Appellant may show herself to be justly entitled. Respectfully submitted, SIMPSON MARTIN, LLP 1349 Empire Central Drive Woodview Tower, Ste. 600 Dallas, Texas 75247 Phone: 214-905-3739 Fax: 214-905-3799 _Georganna L. Simpson GEORGANNA L. SIMPSON Texas Bar Number 18400965 JEREMY C. MARTIN Texas Bar Number 24033611 Attorneys for Appellant, Regina S. Bruce CERTIFICATE OF SERVICE This is to certify that on the 7th day of September, 2010, a true and correct copy of Regina S. Bruce s Appellant s Brief was served on: Karen Blakely Turner Rebecca Tillery Koons, Fuller, Vanden Eykel & Robertson 2311 Cedar Springs, Suite 300 Dallas, Texas 75201 Attorney for Appellee Clayton Elliott Via Hand Delivery and email _Geiorganna L. Simpoon Georganna L. Simpson APPELLANT S BRIEF Page 12