April 4, 2012

BUNTON v. BENEFICIAL TEXAS, INC.

RONALD WAYNE BUNTON, Appellant,
v.
BENEFICIAL TEXAS, INC., ITS SUCCESSORS AND ASSIGNS, Appellee.
No. 09-11-00603-CV.
Court of Appeals of Texas, Ninth District, Beaumont.

Submitted on February 8, 2012.
Opinion Delivered March 29, 2012.

Before McKeithen, C.J., Kreger and Horton, JJ.

MEMORANDUM OPINION
CHARLES KREGER, Justice.

Appellant, Ronald Wayne Bunton,1 appeals the trial court's grant of summary judgment and home equity foreclosure order in favor of Beneficial Texas, Inc. ("Beneficial"). For the reasons set forth below, we affirm the judgment of the trial court.

Following the death of Bunton's mother, Lucresia Bunton, Beneficial filed an original petition for foreclosure pursuant to a first lien home equity mortgage executed by Lucresia. Bunton filed a pro se response. Bunton argued in his letter response that his mother was "not in her right mind" when the mortgage was executed. An attorney ad litem was appointed to represent the unknown heirs of Lucresia's estate.

Thereafter, Bunton became incarcerated in the Texas Department of Criminal Justice. Bunton filed a "Motion for Bench Warrant" requesting that the court issue a warrant ordering the Sheriff to transport him to the court for all hearings in the case. The trial court denied the motion. Beneficial filed a Motion for In Rem Default and In Rem Summary Judgment. Beneficial attached as evidence the loan agreement and mortgage documents executed by Lucresia. Beneficial also submitted documentary evidence establishing the amount of the outstanding debt. Bunton filed a pro se response. The trial court granted the motion and ordered that Beneficial may proceed with foreclosure. Bunton filed a pro se notice of appeal.

On appeal, Bunton argues he was denied the right to call witnesses, preserve evidence, and to establish his claim regarding his mother's mental capacity at the time she allegedly executed the loan. Bunton also complains that the trial court erred in denying his motion for a bench warrant. In his brief, Bunton lists various motions he filed in the trial court and references records he contends would support his claim that the loan was made in bad faith.

An inmate does not have an absolute right to appear in court in a civil case. Armstrong v. Randle, 881 S.W.2d 53, 56 (Tex. App.-Texarkana 1994, writ denied). We review a trial court's decision regarding an inmate's appearance in court proceedings for an abuse of discretion. Id. at 57. Trial courts generally follow a balancing approach in making this determination, weighing factors such as the cost and inconvenience of transporting the inmate, the importance and necessity of the inmate's presence, and the probability of the inmate's success on the merits. See id.

Summary judgment hearings are conducted without oral testimony. See Tex. R. Civ. P. 166a(c). At a hearing on a motion for summary judgment the trial court considers discovery, pleadings, admissions, affidavits, stipulations, and authenticated or certified public records referenced or set forth in the motion for summary judgment or response. See id. The court heard Beneficial's motion for summary judgment on submission. A bench warrant was not necessary in order for Bunton to participate in the summary judgment proceedings. Bunton filed a response to Beneficial's motion for summary judgment, which was considered by the trial court. A defensive claim of the type asserted by Bunton regarding his mother's mental capacity has to be pleaded and proved. See Tex. R. Civ. P. 93, 94. If the nonmovant wishes to assert an affirmative defense to the motion for summary judgment, it must urge the defense in its response and provide enough summary judgment proof to create a fact issue on each element of the defense. See Jones v. Tex. Pac. Indem. Co., 853 S.W.2d 791, 795 (Tex. App.-Dallas 1993, no writ). Bunton failed to submit any evidence or make any legal arguments in support of his response to Beneficial's motion for summary judgment.

We review and evaluate pro se pleadings by less stringent standards than those applied to formal pleadings drafted by attorneys. See Gordon v. Scott, 6 S.W.3d 365, 369 (Tex. App.-Beaumont 1999, no pet.). Nevertheless, pro se litigants are not excused from complying with applicable laws and rules of procedure. Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 679 (Tex. App.-Amarillo 1998, writ denied). Bunton's appellate brief references records he contends would support his defense; however, these documents were not submitted to the trial court and are not part of the record. Bunton does not make any legal arguments challenging Beneficial's right to summary judgment. See Tex. R. App. P. 38.1(i). Bunton has failed to adequately raise an issue on appeal contending that Beneficial was not entitled to summary judgment. See generally Tex. R. App. P. 38.1; Tex. R. Civ. P. 166a. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

Footnotes
1. Beneficial filed its original petition for foreclosure against all heirs of Lucresia Bunton, including Frank Aaron Bunton, Paula Bunton Lane, Melody Bunton Lopez, Oscar D. Bunton, appellant, and the unknown heirs. Appellant is the only party to the suit who appealed the trial court's judgment

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