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Affirmed and Memorandum Opinion filed October 11,
2007.

In The

Fourteenth
Court of Appeals

_______________

NO. 14-06-00428-CV

_______________

WAI-LING LEE, Appellant

V.

ROSE MARIE PALACIOS, Appellee

On Appeal from the 234th District
Court

Harris County,
Texas

Trial Court Cause No.
04-28965

M E M O R A N D U M  O
P I N I O N

Following an automobile
accident, appellant, Wai-Ling Lee, sued appellee, Rose Marie Palacios, for
negligence.  The trial court granted Palacios=s motion for summary judgment
and entered a take-nothing judgment.  Subsequently, the trial court
denied Lee=s motion for new trial.
In three issues, Lee contends the trial court erred by granting summary
judgment, denying his motion for new trial, and refusing to modify its
docket control order.  All dispositive issues are settled in
law.  Accordingly, we issue this memorandum opinion and affirm.
See Tex. R. App. P.
47.4.

Summary
Judgment

In his first issue, Lee
contends the trial court erred by granting Palacios=s motion for summary
judgment.  On December 29, 2005, Palacios moved for summary judgment
on both no-evidence and traditional grounds.[1]  On
January 23, 2006, the trial court signed an order granting the
motion.  When, as in this case, the trial court does not specify in
the order the grounds relied upon in granting summary judgment, we must
affirm the summary judgment if any of the grounds presented are
meritorious.  Western Invs., Inc. v. Urena, 162 S.W.3d 547,
550 (Tex. 2005);  Pico v. Capriccio Italian Restaurant, 209
S.W.3d 902, 905 (Tex. App.CHouston [14th Dist.] 2006, no
pet.).  We conclude the trial court properly granted summary judgment
on the no-evidence ground.

After adequate time for
discovery, a party may move for summary judgment on the ground that there
is no evidence of one or more essential elements of a claim or defense on
which an adverse party would have the burden of proof at trial.
Tex. R. Civ. P. 166a(i);
Urena, 162 S.W.3d at 550; Pico, 209 S.W.3d at 905.  The
movant must state the elements as to which there is no evidence.
Tex. R. Civ. P.
166a(i).  Unless the respondent produces summary judgment
evidence raising a genuine issue of material fact, the trial court must
grant the motion.   Id.; Urena, 162 S.W.3d at
550;  Pico, 209 S.W.3d at 905.

The elements of a negligence
action are (1) a legal duty owed to the plaintiff, (2) a breach of that
duty by the defendant, and (3) damages proximately caused by the
breach.  Urena, 162 S.W.3d at 550.  In her motion,
Palacios asserted there is no evidence on the third element.  The
record contains no response by Lee to the motion for summary
judgment.  To defeat a no‑evidence motion for summary judgment, the
non-movant need not marshal his evidence, but must point out in his
response evidence raising a genuine issue of fact as to the challenged
elements.  See comment to tex. R. Civ. P. 166a(i);
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.
2002); Pico, 209 S.W.3d at 912; San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 330 (Tex. App.CHouston [14th Dist. 2005, no
pet.); see also Michael v. Dyke, 41 S.W.3d 746, 751 (Tex.
App.CCorpus Christi 2001, no pet.)
(recognizing that A[f]ailure to respond to a
no‑evidence motion is fatal@); Judge David Hittner and
Lynne Liberato, SUMMARY JUDGMENTS IN TEXAS, 47 S. Tex. L. Rev. 409, 488 (2006)
(stating that A[r]esponding to a no‑evidence
summary judgment motion is virtually mandatory@).[2]

Although Lee=s brief is unclear, he does not
dispute that he failed to respond to the motion.  Instead, when
challenging the no-evidence summary judgment, Lee apparently cites the
following items and/or accompanying Aevidence@ that he filed at various
times:  his petition; discovery responses; an untitled Aletter@ submitted after Palacios filed
her first no-evidence motion for summary judgment; witness list, exhibit
list, and proposed jury charge; his own motions for summary judgment;
motion for new trial; ASubmission on Reconsidering
Plaintiff=s Motion for New
Trial@; AMotion to Exclude Evidence of
Insufficient Personal Knowledge,@ and motion for modification of
discovery control plan. Lee filed some of these items before the trial
court granted summary judgment, but submitted others after the trial court
granted summary judgment.

With respect to items filed
before the trial court granted summary judgment, Lee did not meet his
burden to respond to the no-evidence portion of Palacios=s motion.  Even when the
non-movant files a response, the trial court is not required to search the
record for evidence raising a material fact issue without more specific
guidance from the non-movant   See Blake v. Intco
Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.CSan Antonio 2003, no pet.);
Burns v. Canales, No. 14‑04‑00786‑CV, 2006 WL 461518, at
*5B6 (Tex. App.CHouston [14th Dist.] Feb. 28,
2006, pet. denied) (mem. op.).  Accordingly, absent a
summary-judgment response identifying evidence raising a fact issue, the
trial court was not required to review Lee=s other filings to find any
such evidence.  Moreover, a nonmovant does not meet his burden to
respond to a no-evidence motion for summary judgment by the mere existence
in the court=s file of a response to an
earlier motion for summary judgment.  See Saenz v. S. Union
Gas Co., 999 S.W.2d 490, 494 (Tex. App.CEl Paso 1999, pet.
denied).  Consequently, even if any of the referenced items
constituted a response to Palacios=s earlier no-evidence motion
for summary judgment, Lee did not meet his burden to respond to the later
motion.

With respect to items submitted
after the trial court granted summary judgment, the record does not
reflect the trial court permitted late filing of a summary-judgment
response.  A trial court may accept summary judgment evidence filed
late, even after summary judgment, as long as the court affirmatively
indicates in the record that it accepted or considered the evidence.
Stephens v. Dolcefino, 126 S.W.3d 120, 133B34 (Tex. App.CHouston [1st Dist.] 2003, pet.
denied); see Tex. R. Civ. P. 166a(c).  Where nothing appears
of record to indicate the trial court granted leave for late filing of a
summary-judgment response, we presume the trial court did not consider the
response.  See Benchmark Bank v. Crowder, 919 S.W.2d
657, 663 (Tex. 1996); INA of Tex. v. Bryant, 686 S.W.2d
614B15 (Tex. 1985);  Brown
v. Shores, 77 S.W.3d 884, 887 (Tex. App.CHouston [14th Dist.] 2002, no
pet.).  Therefore, to the extent that any of the above-cited,
late-filed items could suffice as a summary-judgment response, they were
not before the trial court.  See Brown, 77 S.W.3d at
887.

In sum, because Lee failed to
respond to Palacios=s motion for summary judgment,
the trial court properly granted the motion on the no-evidence
ground.  See Gray v. The Kirkwood S. Comm. and All Tex.
Demolishing. Inc., No. 01‑02‑00145‑CV, 2003 WL 21513509, at *2 (Tex.
App.CHouston [1st Dist.] Jul. 3,
2003, no pet.) (mem. op.) (holding trial court did not err by granting
no-evidence motion for summary judgment where  non-movant failed to
file a response). We overrule Lee=s first issue.

Motion for New Trial
and

Request
for Modification of Docket Control Order

Lee=s second and third issues are
interrelated.  Again, his contentions are not clear.  In his
second issue, Lee apparently claims the trial court erred by denying his
motion for new trial because he presented an opinion from an
accident-reconstruction expert after the trial court granted summary
judgment.  In his third issue, he complains that the trial court
refused to modify its docket control order after granting summary judgment
to allow Lee an opportunity to designate this expert.

Lee suggests he was entitled to
a new trial because his expert=s report constituted
Anewly discovered
evidence.@  A party seeking a new
trial based on newly discovered evidence must establish (1) the evidence
has come to his knowledge since trial, (2) it was not owing to want of due
diligence that the evidence did not come to his attention sooner, (3) the
evidence is not cumulative, and (4) the evidence is so material that it
would probably produce a different result if a new trial were
granted.  Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.
1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d
715 (Tex. 2003).  We review the denial of a motion for new trial
under an abuse-of-discretion standard.
Id.

In his timely motion for new
trial, Lee did not mention the expert or attach his report, much less
argue that he satisfied the criteria for obtaining a new trial based on
newly discovered evidence.  Although Lee suggests the expert was
discussed at a hearing on the motion for new trial, we have no record of
the hearing.  Rather, Lee mentioned the expert opinion in his two
pleadings entitled, ASubmission on Reconsidering
Plaintiff=s Motion for New
Trial,@ filed after the trial court
denied his motion for new trial.  Nevertheless, in these pleadings,
Lee did not argue that he satisfied the criteria for obtaining a new trial
based on newly discovered evidence.[3]  For
instance, he failed to offer any reason he was unable to obtain an expert
opinion before the trial court granted summary judgment, considering his
suit had been on filed more than one and a half years at the time of the
ruling.  Accordingly, the trial court did not abuse its discretion by
refusing to grant a new trial based on newly discovered evidence.  We
overrule Lee=s second issue.

In addition, Lee complains that
the trial court refused to modify its docket control order to extend the
deadline for Lee=s expert designation.
This deadline expired before Palacios filed her motion for summary
judgment.  However, Lee suggests that, after granting summary
judgment, the trial court should have modified its docket control order to
allow Lee an opportunity to designate his expert.  Obviously, such
modification would have been meaningless unless the trial court also
granted a new trial and vacated the summary judgment.  As discussed,
Lee failed to establish a right to a new trial based on this alleged newly
discovered evidence.  Therefore, the trial court did err by refusing
to modify the docket control order.[4]  We
overrule Lee=s third issue.

Accordingly, the judgment of
the trial court is affirmed.

/s/
Charles W. Seymore

Justice

Judgment rendered and
Memorandum Opinion filed October 11, 2007.

Panel consists of Justices
Yates, Seymore, and Edelman.*

[1]  Palacios had previously filed a no-evidence
motion for summary judgment on February 11, 2005.  A few months
later, the trial court denied the motion.  Subsequently, Palacios
filed the motion at issue.

[2]  Although Lee has appeared pro se in the
trial court and on appeal, he is held to the same standards as a licensed
attorney and must comply with the applicable laws and rules of
procedure.  See  Mansfield State Bank v. Cohn, 573
S.W.2d 181, 184B85 (Tex. 1978); Brown v. Tex. Employment
Comm=n, 801
S.W.2d 5, 8 (Tex. App.CHouston [14th Dist.] 1990, writ
denied).

[3] If these pleadings are tantamount to additional
motions for new trial, they were not even timely because they were filed
more than thirty days after the trial court signed the summary
judgment.  See Tex. R.
Civ. P.  329b(a) (providing motion for new trial shall be
filed prior to or within thirty days after judgment or other order
complained of is signed); IPM Products Corp. v. Motor Parkway
Realty, 960 S.W.2d 879, 882 (Tex. App.CEl Paso 1997, no pet.) (recognizing motion for
reconsideration is equivalent of a motion for new trial).  In fact,
the trial court=s plenary power had expired when Lee filed the
second pleading because it was submitted more than thirty days after the
trial court denied Lee=s only timely motion for new trial.
See Tex. R. Civ. P.
329b(e) (providing trial court has plenary power until thirty days
after all timely filed motions for new trial are overruled).
However, Lee seemed to characterize these pleadings as requests for
rehearing from denial of the motion for new trial, as opposed to
additional motions for new trial.  Nonetheless, in these pleadings,
he did not satisfy the criteria for obtaining a new trial based on newly
discovered evidence.

[4]  Lee did not even file his AMotion for Modification of Discovery Control
Plan@ until after the trial court=s plenary power had expired.  Regardless, to
the extent Lee asserts the trial court should have modified the docket
control order in conjunction with ruling on his timely motion for new
trial, he has shown no error.

*  Senior Justice Richard H. Edelman sitting
by assignment.