Eric Springstun v. the Wharf at Clear Lake Slip Maintenance Association, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00270-CV
__________________

ERIC SPRINGSTUN, Appellant

V.

THE WHARF AT CLEAR LAKE SLIP
MAINTENANCE ASSOCIATION, INC., Appellee

__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 23-07-10483-CV
__________________________________________________________________

MEMORANDUM OPINION

Pro se Appellant Eric Springstun (“Appellant” or “Springstun”) appeals from

the trial court’s summary judgment in favor of Appellee The Wharf at Clear Lake

Slip Maintenance Association, Inc. (“Appellee” or “the Association”). We affirm

the trial court’s judgment.

1
Background

Pleadings Filed Before the
Motion for Summary Judgment 1

On July 20, 2023, the Association filed an Emergency Application for

Temporary Restraining Order, Temporary Injunction, Permanent Injunction and

Original Petition (the “Petition”) against Springstun relating to his alleged actions

while serving as a board member for the Association and his actions after his

removal from the board. The Association alleged that: Springstun owns a boat slip

within the property that is governed by the Association; at its annual meeting in July

of 2022, Springstun volunteered to serve on the Board, and he was voted onto the

Board as a non-officer Board member; and later in September of 2022, Springstun

was voted in as the Association’s Vice President, and Kurt Lotero was voted in as

the Association’s President. According to the Petition, Springstun was later removed

from the board on June 15, 2023, for “failure to pay assessments[.]” The Association

alleged that when Springstun was on the board he exchanged unauthorized

communications with the attorneys representing the Association on internal matters,

one of the Association’s attorneys informed Springstun that he needed to stop

sending communications to her because it was causing legal fees to be incurred and

1
We include a short discussion of relevant pleadings, rulings, and their
contents only as necessary to provide the necessary background to dispose of the
issues before us.
2
that the attorney only communicated with the President, Springstun continued to

make unauthorized communications with the attorneys, and eventually the attorneys

withdrew from their representation of the Association due to unresolved conflicts.

The Association also alleged Springstun engaged in “harassing communications”

and made accusations against the Association and became “verbally hostile” to the

Association’s bookkeeper who also resigned because of the conflict. The

Association made additional allegations against Springstun in the Petition, and it

sought injunctive relief and a declaratory judgment.

On July 25, 2023, the trial court granted a TRO and set a hearing on the

temporary injunction. On August 4, 2023, Springstun filed a pro se Answer and

Counterclaim to Temporary Restraining Order and Request for Relief, specifically

denying the Association’s claims and asserting counterclaims. The Association filed

a First Amended Petition and Request for Temporary Injunction and Permanent

Injunction. At the temporary injunction hearing, the trial court granted Springstun’s

request for a continuance and extended the TRO until the hearing on the temporary

injunction set for August 17, 2023, which the trial court reset for August 31, 2023.

After the August 31, 2023 hearing, the trial court denied the Association’s

request for a temporary injunction. Springstun filed numerous pro se motions,

notices, and other filings with the trial court. The Association then filed an Original

Answer to Springstun’s counterclaims, as well as a Rule 91a Motion to Dismiss. On

3
October 6, 2023, the trial court held a hearing on Springstun’s motions, which

included “Defendant’s Motion to Compel (Board Members)[,]” “Defendant’s

Motion for Dismissal[,]” and “Defendant’s Motion for Expedited Discovery[,]” and

on “Plaintiff’s Rule 91a Motion to Dismiss Defendant’s Counterclaims.” That same

day the trial court entered an Order denying all of the Defendant’s motions and

granting the Rule 91a motion to dismiss, and the trial court dismissed Springstun’s

counterclaims, but it declined to award the Association any attorney’s fees.

On November 6, 2023, Springstun, acting pro se, filed what he styled as

“Defendant’s Counterclaim” against the Association.2 On November 17, 2023, an

attorney appeared on behalf of Springstun and filed a Designation of Attorney in

Charge. On December 6, 2023, Springstun’s designated attorney filed a Motion for

Leave to Withdraw as Counsel, stating, among other things, that after meeting with

Springstun, the attorney had learned that “this case is not what [Springstun] led [him]

to believe[,]” that Springstun had not paid him any money and would not listen to

2
We note that the record before us indicates that Springstun alleged in
“Defendant’s Counterclaim” that he had claims against the Association “acting
through its board of directors and the individually named members Kurt Lotero, John
Oleyar, Nasser Hempel, and Jimmy Schlomach[.]” In later-filed counterclaims,
Springstun asserted that his counterclaims were against the Association and its board
members “Kurt Lotero, John Oleyar, Nasser Hempel and Jimmy Schlomach,”
although the individuals were not named as parties to the suit in any of his
counterclaims. Several months later on April 30, 2024, Springstun filed a motion for
leave to add the individual board members as additional parties. That motion was
pending at the time the trial court granted the summary judgment.
4
sound legal advice, that Springstun “insists upon pursuing an objective that [counsel]

considers repugnant or imprudent or with which [counsel] has fundamental

disagreement[,]” and that Springstun did not agree to the motion. The motion also

alleged the following:

After being specifically told to no longer talk to the court or file
anything else with the court and that all filing needed to go through my
office, Mr. Springstun went and changed a continuance, already
approved by opposing counsel, to a date no one can make. This is after
repeated explanations on why the continuance was needed, the reasons
for the continuance, and why, legally, it had to be moved for a potential
DTPA counterclaim. Mr. Springstun has provided me no tangible
evidence of a counterclaim after 4 weeks of explaining what was
need[ed].

On February 23, 2024, the Association filed a Notice of Nonsuit without

Prejudice, requesting the trial court to enter the Order of Nonsuit and dismiss the

Association’s claims against Springstun. The trial court granted the nonsuit.

While his counsel’s motion to withdraw was pending, Springstun filed many

pro se pleadings including discovery requests and additional motions seeking relief

from the court. On March 18, 2024, for example, Springstun filed what he styled as

“Counterclaim One” and “Counterclaim Two.” In April of 2024, Springstun filed

pro se motions about discovery deadlines, seeking permission to video the court

proceedings, and requesting remedial action and enforcement of access to records.

Springstun also filed his own motions for summary judgment, a motion to address

his own attorney’s conduct, a motion to proceed pro se and request hearing dates,

5
and other pro se items. Springstun disputed the allegations made in his counsel’s

Motion for Leave to Withdraw as Counsel, and he filed pro se responses arguing his

attorney was mistaken about what is required to withdraw and disputing what his

counsel said about him in the motion.

The Association filed a Traditional and No Evidence Motion for Summary

Judgment (the MSJ) on April 24, 2024, which we discuss in depth later in this

memorandum opinion. The trial court held a hearing on May 17, 2024, wherein the

trial court heard the attorney’s Motion for Leave to Withdraw as Counsel.

Springstun, Springstun’s attorney who filed the Motion to Withdraw, and the

attorney for the Association appeared at the hearing. In accordance with the trial

court’s admonitions during the hearing and the agreements made at the hearing, the

attorney filed another motion to withdraw, which was agreed to by opposing counsel

and agreed to by Springstun, and the trial court granted the motion on May 17, 2024.

After the entry of the Order granting the Motion to Withdraw which

Springstun had agreed to at the hearing, Springstun filed a Second Amended

Response to Motion for Leave to Withdraw as Counsel. Therein, Springstun again

disputed what his attorney had stated in the first motion to withdraw, Springstun

complained about the lack of proper representation he had received from his

attorney, and he sought sanctions and disciplinary actions against his attorney.

6
On May 24, 2024, the trial court entered an Order Granting Counter-

Defendant Wharf at Clear Lake Slip Maintenance Association, Inc.’s Traditional and

No-Evidence Motion for Summary Judgment. Springstun’s live counterclaims at the

time the Association filed its MSJ and at the time the trial court granted summary

judgment in favor of the Association were those presented in Springstun’s pro se

“Counterclaim One Against Counter-Defendants” and “Counterclaim Two Against

Counter-Defendants[.]” 3 The “Counter Claim One Against the Counter-

Defendants[,]” states as follows:

A. False Fines and Fees (Count A) [] The HOA board’s imposition of
undocumented fines and fees, purportedly due to previous ownership
and coinciding with inquiries into financial mismanagement, raises
concerns under the Texas Deceptive Trade Practices Act (DTPA), Tex.
Bus. & Com. Code Ann. § 17.46 et seq. The lack of evidence for these
charges and their timing may indicate retaliatory practices, potentially
violating the DTPA’s prohibition against misleading and unfair
business actions. This scenario, especially given that Texas law and
HOA governance documents clarify financial obligations do not
transfer to new owners without a proper lien, challenges the board’s
claims’ validity and suggests deceptive practices in contravention of the
DTPA.

B. Defamation of Character (Count B) [] John Oleyar’s dissemination
of false statements has damaged Springstun’s reputation, actionable

3
Springstun alleged that two separate filings were necessary because they are
“predicated on the distinct factual and legal bases of each claim, necessitating their
individual consideration and resolution” by the trial court. The claims in
Springstun’s pro se “Counterclaim One Against Counter-Defendants” and
“Counterclaim Two Against Counter-Defendants[,]” are amended counterclaims.
See generally Tex. R. Civ. P. 65 (“Substituted Instrument Takes Place of Original”);
State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (providing that a court
looks to the substance of a pleading to determine the nature of a pleading).
7
under Texas Civil Practice and Remedies Code §§ 73.001-73.062
(Defamation). Springstun seeks compensatory and punitive damages.

C. Selective Enforcement and Financial Misconduct (Count C) [] The
Association’s selective enforcement of covenants against Springstun,
violating Chapter 209 of the Texas Residential Property Owners
Protection Act, warrants injunctive relief and damages for
discriminatory treatment.

D. Breach of Contract and Fiduciary Duty (Count D) [] The Board’s
failure to adhere to the HOA’s governing documents and Texas law,
particularly the Texas Residential Property Code Chapter 209,
constitutes a breach of contract and fiduciary duty. Springstun seeks
damages and corrective action.

E. Invalid HOA Presidency (Count E) [] Kurt Lotero’s assumption of
HOA presidency, in violation of the Texas Property Code and the
association’s bylaws, requires judicial intervention to invalidate actions
taken under his leadership and compensate the community for any
resulting harm.

F. Disenfranchisement of Property Owners’ Votes (Count F) [] The
Association’s refusal to accept electronic votes, as allowed under
Chapter 209 of the Texas Property Code, disenfranchises property
owners. Springstun seeks an order mandating the acceptance of
electronic votes and damages for disenfranchisement.

G. Retaliation for Exercising Rights (Count G) [] Actions taken by the
Association and its board members constitute retaliation against
Springstun for his lawful exercise of rights, in violation of the Texas
Residential Property Code and the Texas Civil Practice and Remedies
Code on protected speech. Remedies sought include compensatory
damages and injunctive relief against further retaliation.

H. Compensatory Damages (Count H) [] For the emotional distress,
reputational damage, and financial losses incurred due to the actions of
the Association and its board, Springstun seeks compensatory damages
under Texas law for tortious conduct.
I. Punitive Damages (Count I) [] Due to the malicious, oppressive, and
fraudulent nature of the Defendant’s actions, Springstun requests
8
punitive damages as allowed under Texas Civil Practice and Remedies
Code § 41.001-41.013 to deter such conduct in the future.

J. Injunction to Remove Board Members and Allow Association Vote
(Count J) [] Springstun requests an injunction for the removal of the
board members engaged in wrongful conduct and for an order allowing
a fair association vote for new board leadership, in accordance with the
Texas Property Code and the association’s bylaws.

K. Unlawful Use of Association Funds for Frivolous Litigation (Count
K) [] The Association’s use of funds for litigating baseless claims
against Springstun and other property owners warrants restitution and
injunctive relief to prevent future misuse of association resources.

L. Additional Relief Sought (Count L) [] Springstun seeks additional
relief including the restoration of voting rights, transparency in
financial management, and adherence to the Texas Property Code in all
future board actions.

The allegations in “Counter Claim Two Against the Counter-Defendants[,]” include

the following:

A. Breach of Fiduciary Duty
1. Allegations: Counter-Plaintiff alleges that Counter-Defendants
have failed in their duty to act in the best interests of the HOA
and its members by authorizing the use of HOA funds for
litigation purposes not approved within the governing documents
and for transactions lacking proper documentation or conducted
for personal gain. This behavior contravenes the fiduciary duties
established under Texas Business Organizations Code §22.221,
which mandates directors of nonprofit corporations to act in good
faith and in a manner they reasonably believe to be in the best
interests of the corporation.
2. Specific Law: Additionally, Texas Property Code §209.001 et
seq. provides a framework for the operation of property owners’
associations, including the fiduciary obligations of those in
charge of managing the associations’ affairs. The
mismanagement and misuse of funds by the Counter-Defendants
represent a clear breach of these duties.
9
B. Misappropriation of HOA Funds
1. Allegations: Counter-Plaintiff asserts that the Counter-Defendants
engaged in unauthorized expenditures and transactions that
constitute misappropriation of HOA funds. Such actions are not
only outside the scope of their authority but also detrimental to
the financial health and governance of the HOA.
2. Specific Law: This conduct is actionable under Texas Property
Code §209.005(c), which governs the collection, management,
and expenditure of association funds, and stipulates that such
funds must be used solely for the benefit of the association and
its members. Misappropriation of these funds directly violates
this statutory requirement.

C. Retaliatory Litigation
1. Allegations: The Counter-Plaintiff claims that litigation initiated
by the Counter-Defendants against him was retaliatory, intended
to suppress his objections to their management practices. This
retaliatory action is in response to the Counter-Plaintiff
exercising his rights to question and challenge the Counter-
Defendants’ stewardship of the HOA.
2. Specific Law: Such retaliatory conduct may be in violation of
Texas Civil Practice & Remedies Code §27.001 et seq., the
Texas Citizens Participation Act (TCPA), designed to protect
individuals from retaliatory lawsuits that seek to chill the
exercise of their rights to free speech, petition, and association.
The Counter-Plaintiff’s actions, aimed at ensuring proper
governance of the HOA, fall under these protected rights.

The Association’s
Traditional and No-Evidence Motion for Summary Judgment

The Association filed a Traditional and No-Evidence Motion for Summary

Judgment (the “MSJ”), alleging that it was entitled to a summary judgment on

Springstun’s counterclaims as a matter of law because the Association’s individual

members would be exempt from liability under the Federal Volunteer Protection Act

10
and the Texas Charitable Immunity and Liability Act, and that Springstun has no

evidence to support any of his alleged claims against the Association.

As evidence in support of its motion, the Association attached the following:

Exhibit A: Declaration of Covenants, Conditions and Restrictions for a
Portion of Phase 11a of the Wharf at Clear Lake (The Wharf at Clear
Lake Live-Aboard Marina)

Exhibit B: Management Certificate of The Wharf at Clear Lake Slip
Maintenance Association, Inc.

Exhibit C: John Oleyar Unsworn Declaration

Exhibit D: Kurt Lotero Unsworn Declaration

Exhibit E: Nasser Hempel Unsworn Declaration

Exhibit F: Jimmy Schlomach Unsworn Declaration

Exhibit G: Bylaws of Wharf at Clear Lake Slip Maintenance
Association, Inc.

Exhibit H: Articles of Incorporation of The Wharf at Clear Lake Slip
Maintenance Association, Inc.

Regarding Springstun’s breach of fiduciary duty claim against the

Association, the Association alleged that there is no evidence that there was a

fiduciary relationship between Springstun and the Association. As for Springstun’s

breach of contract claim, the Association alleged that there is no evidence of a valid

contract between the Association and Springstun, or that Springstun performed or

tendered performance, or that the Association breached the contract, or that

Springstun sustained damages from an alleged breach. According to the Association,
11
Springstun’s claim for “False Fines and Fees[;]” “Defamation of Character with

Involvement of Board Member[;]” “Selective Enforcement and Financial

Misconduct[;]” “Invalid HOA Presidency[;]” “Disenfranchisement of Property

Owners’ Votes[;]” “Retaliation for Exercising Rights[;]” “Compensatory Damages

[for] emotional distress, reputational damage, and financial losses incurred due to

the actions of the Association and its board[;]” “Punitive Damages[;]” “Injunction

to Remove Board Members and Allow Association Vote[;]” “Unlawful Use of

Association Funds for Frivolous Litigation[;]” “Additional Relief Sought [for] the

restoration of voting rights, transparency in financial management, and adherence to

the Texas Property Code in all future board actions[;]” “Misappropriation of HOA

Funds[;]” and “Retaliatory Litigation[,]” the Association alleged these are not viable

causes of action against the Association, as a matter of law.

Springstun’s Opposition to the Association’s MSJ

Springstun filed an Opposition to Counter-Defendant’s Traditional and No-

Evidence Motion for Summary Judgment, an Amended Opposition to Counter-

Defendant’s Traditional and No-Evidence Motion for Summary Judgment, a Second

Amended Opposition to Counter-Defendant’s Traditional and No-Evidence Motion

for Summary Judgment, and a Third Amended Opposition to Counter-Defendant’s

Traditional and No-Evidence Motion for Summary Judgment. Springstun made

similar allegations as he stated in Counterclaim One and Counterclaim Two, but he

12
did not produce or attach any affidavits, exhibits, or evidence to his responses to the

MSJ.

Trial Court’s Order and Post-Judgment Pleadings

On May 24, 2024, the trial court signed an Order granting the Association’s

MSJ and dismissing Springstun’s counterclaims against the Association with

prejudice. The Order stated that “[a]ll motions not specifically granted herein are

denied[,]” and stated it “disposes of all claims and all parties[]” and “is final and

appealable.” Springstun filed several post-judgment motions, including motions for

new trial, and the post-judgment motions were overruled by operation of law.

Springstun then filed this appeal.

Appellant’s Issues on Appeal

Appellant’s pro se brief phrases his issues on appeal as follows:

[1.] Whether the trial court erred in granting summary judgment based
on the assertion that HOA board members are exempt from liability
under the Federal Volunteer Protection Act and the Texas Charitable
Immunity and Liability Act.

[2.] Whether the trial court improperly dismissed Appellant’s
counterclaims related to procedural irregularities, misuse of association
funds, and breaches of fiduciary duties without providing adequate
opportunity for their adjudication.

[3.] Whether the trial court’s failure to address Appellant’s opposition
to the immunity claims and counterclaims resulted in procedural
unfairness, thereby enabling ongoing harassment and retaliation by
Plaintiff’s Board of Directors.
[4.] Whether the trial court improperly refused to hear Appellant’s
motions while an attorney remained on record, despite the attorney’s
13
inactivity and delayed withdrawal, thereby denying Appellant
meaningful access to the court. 4

4
In his Amended Reply Brief, he states his issues differently:

1. Did the Appellee improperly invoke statutory immunity under the
Federal Volunteer Protection Act (FVPA), 42 U.S.C. § 14501 et
seq., and the Texas Charitable Immunity and Liability Act (TCILA),
Tex. Civ. Prac. & Rem. Code § 84.001 et seq., despite evidence of
gross negligence and intentional misconduct?
2. Did the trial court err in granting summary judgment based on a
claim of “no evidence,” despite Appellant’s production of extensive
documentation supporting his counterclaims?
3. Did the combination of attorney misconduct, abandonment, and the
trial court’s refusal to hear Appellant’s motions constitute
procedural unfairness and violate due process?
4. Did the trial court’s procedural treatment of Appellant, including
refusal to hear motions and dismissal with prejudice, violate
Appellant’s constitutional rights under the Texas and U.S.
Constitutions?
5. Did Appellee violate the Texas Rules of Appellate Procedure by
failing to cite to the record, omitting a docketing statement, and
relying on unsupported factual assertions?
6. Does the cumulative effect of the trial court’s errors—including
denial of discovery, procedural barriers, attorney abandonment, and
improper dismissal—warrant reversal under the cumulative error
doctrine?

To the extent the issues listed in the Reply Brief are new or different issues, a
party may not add new issues in a reply brief. See Tex. R. App. P. 38.3. Additionally,
we overruled the motion to strike Appellee’s Brief on Appeal. And we note that
generally the “cumulative error” doctrine has found little favor in Texas appellate
courts. See Caro v. Sharp, No. 03-02-00108-CV, 2003 Tex. App. LEXIS 4943, at
**24-25 (Tex. App.—Austin June 12, 2003, pet. denied) (mem. op.) (citing
Crescendo Invs. v. Brice, 61 S.W.3d 465, 481 & n.16 (Tex. App.—San Antonio
2001, pet. denied)). Further, because we have found no errors, we need not consider
the cumulative error arguments. In re BCH Dev., LLC, 525 S.W.3d 920, 930 (Tex.
App.—Dallas 2017, orig. proceeding) (when no errors exist, the appellate court can
reject cumulative error arguments).
14
While it is true that pro se pleadings and briefs are generally construed

liberally, a pro se litigant is still required to comply with the law and rules of

procedure. See Giddens v. Brooks, 92 S.W.3d 878, 880-81 (Tex. App.—Beaumont

2002, pet. denied).

Standard of Review

We review grants of summary judgment de novo. Cantey Hanger, LLP v.

Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We take as true all evidence favorable to

the non-movant, indulge every reasonable inference in favor of the non-movant, and

resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). A party moving for a traditional summary

judgment meets its burden by proving that there is no genuine issue of a material

fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).

When a party moves for both a traditional and no-evidence summary

judgment, we first consider the no-evidence motion. Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 600 (Tex. 2004). In our review, we are restricted to considering the

arguments the parties presented to the trial court in the written motion or response.

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). On

appeal, the appellate court will not consider any issues or grounds for reversal that

were not presented to the trial court by written response to the motion for summary

judgment. See Tex. R. Civ. P. 166a(c); Lopez v. Munoz, Hockema & Reed, L.L.P.,

15
22 S.W.3d 857, 862 (Tex. 2000). If the non-movant fails to meet his burden under

the no-evidence motion, there is no need to address the challenge to the traditional

motion because it necessarily fails. Merriman v. XTO Energy, Inc., 407 S.W.3d 244,

248 (Tex. 2013).

A no-evidence motion for summary judgment is essentially a pretrial motion

for directed verdict, which we review for legal sufficiency. King Ranch, Inc. v

Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Once a no-evidence motion is filed,

the burden shifts to the nonmoving party to present evidence raising an issue of

material fact as to the elements identified in the motion. Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572, 582 (Tex. 2006). The nonmoving party must produce summary

judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i);

see Mack Trucks, 206 S.W.3d at 582. A trial court must grant a no-evidence motion

for summary judgment unless the nonmovant produces more than a scintilla of

evidence raising a genuine issue of material fact as to the challenged elements. Tex.

R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.

2002). If the evidence rises to a level that would allow reasonable and fair-minded

people to differ in their conclusions, then more than a scintilla of probative evidence

exists. King Ranch, 118 S.W.3d at 751. “The evidence does not create an issue of

material fact if it is ‘so weak as to do no more than create a mere surmise or

suspicion’ that the fact exists.” First United Pentecostal Church of Beaumont v.

16
Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Kia Motors Corp. v. Ruiz, 432

S.W.3d 865, 875 (Tex. 2014)). In evaluating whether more than a scintilla of

evidence exists, we must view the evidence in the light most favorable to the

nonmovant. Ford Motor Co., 135 S.W.3d at 601.

Analysis

We interpret Springstun’s second issue as arguing that the trial court erred in

granting the Association’s no-evidence motion for summary judgment as to

Springstun’s claims. The Association alleges in its MSJ that there is no evidence to

support the elements of Springstun’s breach of fiduciary duty and breach of contract

claims, that the other alleged causes of action are not viable, and even if they were,

that Springstun failed to present evidence in support of those allegations.

The Association filed its suit against Springstun on July 20, 2023. According

to the record before us, Springstun conducted written discovery serving

Interrogatories, Request for Production, and Request for Admissions on the

Association, Springstun filed a Rule 194 Disclosure, and the case had been pending

for six months at the time the trial court granted the MSJ.

The record demonstrates that Springstun filed multiple oppositions to the MSJ

wherein he opposed the MSJ. In his oppositions to the MSJ, Springstun alleged his

claims were “well-grounded in Texas law[,]” he argued his counterclaims, including

his breach of fiduciary duty, misappropriation of HOA funds, and retaliatory

17
litigation, “are valid and supported by Texas Statutes, including Texas Property

Code §209 and Texas Business Organizations Code §22.221.” He argued that the

assertion of Volunteer Immunity did not apply to the Association, he alleged he had

not had adequate time to complete discovery, he claimed he had shown “ample

evidence” of a valid contract between the Association and Springstun “as governed

by the Association’s bylaws and the Texas Property Code[,]” that he performed by

paying his assessments “while the Association breached the contract by

mismanaging funds[]” and failing to make necessary repairs, and that he had alleged

they caused damage to his reputation.

Springstun did not file any affidavits or other evidence with any of his

responses to the Association’s MSJ. Merely filing a response to a summary judgment

motion or relying on a pleading does not satisfy the burden of coming forward with

evidence to respond and create a genuine issue of a material fact to defeat a motion

for summary judgment. Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.

1994); see also Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622

S.W.3d 807, 818 (Tex. 2021) (pleadings generally do not qualify as summary

judgment “evidence,” even when they are sworn or verified). To the extent on appeal

Springstun references what he describes as “ample evidence” that he argues supports

his claims, we reiterate that our review of the summary judgment is restricted to the

evidence, if any, that Springstun presented to the trial court in his written responses

18
to the motion for summary judgment. See McConnell, 858 S.W.2d at 343. A trial

court is not required to search the record to find “evidence,” and merely because

Springstun attached documents to his counterclaims does not make those documents

“evidence.” See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989)

(general references to a voluminous record did not direct trial court to evidence on

which party relied); Vadackaneth v. Asariyathu, No. 05-21-00893-CV, 2023 Tex.

App. LEXIS 4001, at *5 (Tex. App.—Dallas June 8, 2023, no pet.) (mem. op.)

(“[M]erely attaching documents to a motion or a response to a motion does not make

the documents admissible as evidence.”); San Saba Energy, L.P. v. Crawford, 171

S.W.3d 323, 331 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (a non-movant

cannot avoid no-evidence summary judgment by filing voluminous items with a

response that states generally that a genuine fact issue has been raised as to each

element).

After reviewing the entire record before us, we conclude Springstun failed to

produce more than a scintilla of probative evidence to raise a genuine issue of

material fact as to any of his claims. The trial court did not err in granting the no-

evidence summary judgment for the Association. See Tex. R. Civ. P. 166a(i).

Because this issue is dispositive of Springstun’s counterclaims, we need not address

Springstun’s first issue addressing the traditional summary judgment. See Merriman,

407 S.W.3d at 248 (If the non-movant fails to meet its burden under the no-evidence

19
motion, there is no need to address the challenge to the traditional motion because it

necessarily fails.).

In his third and fourth stated issues, Springstun asserts that: the trial court’s

failure to address or consider Springstun’s pro se filings while he was still

represented by counsel resulted in procedural unfairness and denied him meaningful

access to court; his attorney’s ineffectiveness and delayed withdrawal left Springstun

without effective representation during pivotal stages of the litigation; by dismissing

Springstun’s counterclaims the trial court allowed the Association’s board members

to “engage in retaliatory actions without judicial oversight[;]” the trial court’s

disparate treatment of Springstun as a pro se litigant violated his equal protection

rights under the Fourth Amendment to receive fair and equal treatment in judicial

proceedings; the trial court’s dismissal of his counterclaims with prejudice without

sufficient notice or an opportunity to be heard “may” constitute a violation of his

due process rights under the Fourth Amendment; and that he is entitled to remedies

under 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

In civil cases, a party is entitled to represent himself or to be represented by

an attorney. Tex. R. Civ. P. 7. “However, a party is not entitled to representation

partly by counsel and partly pro se.” In re S.V., 599 S.W.3d 25, 44 (Tex. App.—

Dallas 2017, pet. denied); In re Sondley, 990 S.W.2d 361, 362 (Tex. App.—Amarillo

1999, orig. proceeding) (per curiam) (same); Posner v. Dallas Cnty. Child Welfare

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Unit of Tex. Dep’t of Hum. Servs., 784 S.W.2d 585, 588 (Tex. App.—Eastland 1990,

writ denied) (“We hold that in civil cases as in criminal cases an appellant is not

entitled to hybrid representation.”). Accordingly, a trial court is not required to rule

upon or accept pro se filings made by a party while he is still represented by counsel.

See In re Sondley, 990 S.W.2d at 362. That said, here the record reflects that each of

Springstun’s pro se filings were filed in the record and the trial court’s order granting

the summary judgment in favor of the Association stated that the trial court had

considered the Association’s MSJ as well as “responses[,] if any, replies and

arguments[.]” Therefore, the Order indicates the trial court considered Springstun’s

pro se filings, and we find no merit to his arguments that he was somehow denied

fair treatment in the trial court.

To the extent Springstun is alleging ineffective assistance of counsel, “it is

well established that the doctrine of ineffective assistance of counsel does not extend

to purely civil cases.” See In re Estate of Cantrell, No. 09-09-00219-CV, 2010 Tex.

App. LEXIS 6686, at *11 (Tex. App.—Beaumont Aug.19, 2010, no pet.) (mem. op.)

(citing Green v. Kaposta, 152 S.W.3d 839, 844 (Tex. App.—Dallas 2005, no pet.);

Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.—

Houston [14th Dist.] 2003, no pet.)). As for Springstun’s argument that by

dismissing his counterclaims the trial court enabled the board members of the

Association to continue to harass him and retaliate against him, this allegation is

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beyond the scope of this appeal. See Beaumont Tower Venture, Ltd. v. Benckenstein,

Norvell & Nathan, L.L.P., No. 09-96-111-CV, 1997 Tex. App. LEXIS 1490, at **3-

4 (Tex. App.—Beaumont Mar. 20, 1997, no writ) (mem. op.) (“Appellate courts are

limited to a consideration of the record as it existed at the time summary judgment

was entered.”) (citing Johnnie C. Ivy Plumbing Co. v. Keyser, 601 S.W.2d 158, 160

(Tex. App.—Waco 1980, no writ)). Regarding Springstun’s equal protection and

due process arguments, we conclude those arguments are inadequately briefed. See

Tex. R. App. P. 38.1(i). The arguments he made in the trial court were general

allegations that he had been denied due process, that there had been violations of his

equal protection rights and that the actions of his attorney in withdrawing from

representing him caused him harm. On appeal, Springstun argues that his counsel’s

“prolonged withdrawal significantly prejudiced” Springstun because the trial court

refused to hear any motions filed by Springstun while his counsel was still counsel

of record. Springstun fails to explain how his general claims of “procedural

unfairness” and being denied “meaningful access to the court[]” specifically relate

to the trial court’s grant of summary judgment in favor of the Association. On appeal,

Springstun makes assertions of alleged constitutional violations. He fails to provide

legal analysis as to how he was treated differently from other parties in other cases,

he fails to identify specific discovery that he was allegedly prevented from obtaining

as a result of the trial court not ruling on his pro se motions, and he fails to explain

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how that evidence would have impacted his response to the Association’s motion

for summary judgment and precluded summary judgment. On appeal, Springstun

argues his rights under the Fourth Amendment were violated. Springstun did not

make a Fourth Amendment claim in the trial court. Accordingly, he has not

preserved this constitutional complaint. See Tex. R. App. P. 33.1(a)(1) (party’s

argument on appeal must comport with its argument in the trial court to preserve

error). As to his request on appeal for relief under 42 U.S.C. § 1983 and 28 U.S.C.

§ 1343, those arguments also were not presented to the trial court and have been

waived. See Garza v. Harrison, 574 S.W.3d 389, 405 (Tex. 2019) (legal issues raised

for the first time on appeal are waived).

Having overruled Appellant’s issues, we affirm the trial court’s judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on May 22, 2025
Opinion Delivered August 28, 2025

Before Golemon, C.J., Johnson and Wright, JJ.

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