Pro Se Appellant did not update his mailing address (or pay, for that matter). There goes the appeal…

Numerous appeals get dismissed because the appellant - for whatever reason - does not pay the filing fee, does not pay the court reporter, or does not pay the trial court's clerk for preparation of the appellate record (or a combination of these). The dismissal opinion in a case dissed today is routine, except for one additional twist: The unrepresented appellant apparently disappeared, or at least became unreachable. That too, can net dismissal.

 

MEMORANDUM OPINION ON DISMISSAL OF APPEAL

Appellant, [name omitted], has neither established indigence nor paid all the required fees.  See Tex. R. App. P. 5 (requiring payment of fees in civil cases unless indigent), 20.1 (listing requirements for establishing indigence); see also Tex. Gov’t Code Ann. § 51.207 (Vernon Supp. 2011), § 51.941(a) (Vernon 2005), § 101.041 (Vernon Supp. 2011) (listing fees in court of appeals); Order Regarding Fees Charged in Civil Cases in the Supreme Court and the Courts of Appeals and Before the Judicial Panel on Multidistrict Litigation, Misc. Docket No. 07-9138 (Tex. Aug. 28, 2007), reprinted in Tex. R. App. P. App. A § B(1) (listing fees in court of appeals).  On May 27, 2011, the Court notified appellant that the appeal was subject to dismissal if he did not respond within 10 days.  See Tex. R. App. P. 5 (allowing enforcement of rule); 42.3(c) (allowing involuntary dismissal of case).  The notice was returned as undeliverable.

  

A pro se appellant is required to keep this Court apprised of his current mailing address.  See Tex. R. App. P. 6.3(c), 9.1(b). 

  

Because appellant has failed to pay the filing fee and has failed to comply with the Rules of Appellate Procedure, we dismiss the appeal.  See Tex. R. App. P. 5, 9.1(b), 37.3(b), and 42.3(b), (c).  We dismiss any pending motions as moot.

 
PER CURIAM
 
Panel consists of Justices Bland, Massengale, and Brown.
SOURCE: HOUSTON COURT OF APPEALS - 01-11-00291-CV - 5/17/12
  

Wife's affidavit construed as a pleading, making her a co-plaintiff with the husband who brought suit pro se and could not file for her because he does not have a license to practice law

Nonattorney husband filed pro se suit against neighbor and wife executed attached affidavit, in which she referred to herself as plaintiff, but she did not herself sign the pleading. Court holds that her affidavit was sufficient to make her a pro se plaintiff. Subsequent nonsuit by husband did not include the wife, wherefore wife's cause of action remained pending and the county court in which the action was filed did not lose plenary jurisdiction to transfer the case to district court more than 30 days after husband's nonsuit.

OPINION EXCERPT

Jurisdiction

In his first issue on appeal, HUSBAND contends the District Court never had jurisdiction, thus its judgment is void. Specifically, HUSBAND argues that WIFE was never a party to the suit because she did not sign the petition, and, as a result, his nonsuit of April 25, 2007, which was approved by the County Court on April 30, 2007, disposed of all claims then pending in the suit. As a result, HUSBAND argues that the County Court lost plenary power on May 25, 2007, or at the very latest, on May 30, 2007. Therefore, HUSBAND contends that the County Court’s June 5, 2007 order transferring venue to the District Court was void, and the District Court lacked subject-matter jurisdiction. In his third issue on appeal, HUSBAND contends the trial court erred in overruling his motion for summary judgment, which was based on the same ground. Because this argument hinges on whether WIFE was ever a party to the suit, we address that issue first.

HUSBAND argues that because he is not a lawyer, he could not represent his wife, and that because she never signed the Original Petition, she was never a party to the suit. It is true that HUSBAND cannot represent his wife unless he is a member of the State Bar of Texas or otherwise qualifies for the limited practice of law. See Tex. Gov’t Code Ann. § 81.102 (Vernon 2005); Magaha v. Holmes, 886 S.W.2d 447, 448 (Tex. App.—Houston [1st Dist.] 1994, no writ).

However, under the facts of this case, we conclude that WIFE did in fact represent herself pro se in the filing of the lawsuit. While it is true that WIFE did not sign the petition, she did sign an affidavit attached to the petition in which she averred, “I am the Plaintiff.” And, not only was her affidavit attached to the petition with the notation “Plaintiff Original Petition” appearing in its lower left corner, paragraph 8 of the petition provides, “Plaintiff, Mrs. [LAST NAME], attaches Exhibit 2 as her affidavit and fully incorporates it herein by reference in this petition.” By signing the affidavit referring to herself as a Plaintiff, attaching that affidavit to the petition, and incorporating it by reference into the petition, WIFE has complied with the requirement that a pro se petition be signed. See Tex. R. Civ. P. 57. Additionally, a pleading shall not be deemed defective because of something that can be supplied by an exhibit attached to and referenced in a petition. See Tex. R. Civ. P. 57. WIFE ’s affidavit, which is attached to and incorporated by reference in the petition, provides her signature, which was missing from the petition itself. Thus, we conclude that WIFE was a party to the lawsuit.

We next consider what effect WIFE ’s participating in the lawsuit had on the County Court’s plenary power. HUSBAND argues that because his nonsuit disposed of all claims pending at the time it was filed, the trial court lost plenary power 30 days thereafter, which was several days before it signed the order to transfer jurisdiction to the District Court. Thus, HUSBAND contends the order transferring jurisdiction was void and the District Court never acquired subject-matter jurisdiction.

However, like the petition, the “Notice of Nonsuit with Prejudice to Refile” was signed only by HUSBAND, but not WIFE . Further, the notice provides, “COMES NOW Plaintiff, HUSBAND, and pursuant to Rule 162 of the Texas Rules of Civil Procedures serves notice on this Court that he is taking a nonsuit . . . on all claims against [DEFENDANT]” The nonsuit does not reference WIFE or her claims at all. Because Tony cannot represent WIFE , see Magaha, 886 S.W.2d at 448, and the nonsuit he filed does not even purport to do so, it did not dispose of WIFE ’s claims against [DEFENDANT]. Because WIFE ’s claims remained pending, the County Court retained plenary power over the suit when it transferred jurisdiction to the District Court. Thus, the transfer provided the District Court with subject-matter jurisdiction.[1]

We overrule HUSBAND’s first and third issues on appeal.

In issue two, HUSBAND contends that the June 5, 2007 order transferring the case to District Court was void. Specifically, HUSBAND argues that under Texas Rule of Civil Procedure 87, he was entitled to 45 days’ notice of a hearing on a motion to transfer venue. However, Rules 86 and 87 apply to motions to transfer venue from one county to another. See Tex. R. Civ. P. 86 & 87. The present case was being transferred from the County Court to the District court pursuant to Tex. Gov’t Code Ann. § 74.121(b)(1) (Vernon 2011), thus the 45 days’ notice required by Rule 87 is not applicable.

We overrule HUSBAND’s second issue on appeal.

SOURCE: HOUSTON COURT OF APPEALS - 01-09-00545-CV - 5/3/12 [names of pro se parties replaced with terms husband and wife; name of Defendant likewise substituted]

Pro se appellant told what's wrong with special writ petition

Court of Appeals tells pro se litigant what's wrong with his petition for a special writ. (They don't always do that, but issue one-liner or one-sentence "opinions" instead)


Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Floyd Pleasant Tarvin, IV, has filed a pro se “Application and Petition for Writ of Procedendo Pursuant to Texas Rule of Appellate Procedure 72.” Relator asks this court to direct respondent[1] to rule on his application for “writ of coram vobis,” pertaining to relator’s underlying civil suit.[2]

Rule of Appellate Procedure 72, to which appellant cites, applies to proceedings in the Texas Court of Criminal Appeals. See Tex. R. App. P. 72. In a civil suit, as here, Texas Government Code section 22.002(a) specifically grants the Supreme Court of Texas the power to issue a writ of procedendo. See Tex. Gov’t Code Ann. § 22.002(a) (Vernon Supp. 2011). This court’s statutory general writ power, however, is limited to “writ[s] of mandamus and all other writs necessary to enforce the jurisdiction of the Court.” See Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004). Relator has not established that the writ he seeks is necessary to enforce our jurisdiction.

We construe relator’s petition as a petition for writ of mandamus because, in substance, relator seeks to compel the trial court to rule on his application. See In re Alpert, 276 S.W.3d 592, 595 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (noting that ruling upon motion is ministerial act and that mandamus may issue to compel trial court to act); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (acknowledging duty to liberally construe petition of party acting pro se to determine merits of complaints).

Mandamus will issue “only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). To show entitlement to mandamus relief, a relator must satisfy three requirements: (1) the lower court must have a legal duty to perform a nondiscretionary act, (2) the relator must make a demand for performance, and (3) the trial court must refuse that request. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979). Specifically, to establish that the trial court abused its discretion by failing to rule, a relator must show that the trial court received his application, was aware of it, was asked to rule, and failed or refused to do so. See Barnes, 832 S.W.2d at 426. Here, relator has not provided us with a record showing that the trial court received his application, was aware of it, was asked to rule, and refused to rule. See id.

Furthermore, relator’s petition does not comply with Rule of Appellate Procedure 52.3. See, e.g., Tex. R. App. P. 52.3(k) (requiring “certified or sworn copy of any order complained of, or any other document showing the matter complained of”).

Accordingly, we deny the petition for writ of mandamus. All pending motions are dismissed as moot.

PER CURIAM

-------------------------------------------------------------------------------

[1] Respondent is the Honorable Dan Hinde of the 269th District Court, Harris County, Texas.

[2] The underlying case is Floyd Pleasant Tarvin, IV v. Charles Bacarisse, No. 2009-29985, 269th Dist. Court (Harris County, Texas).

In re Floyd Pleasant Tarvin IV, No 01-11-01127-CV (Tex.App.- Houston [1st Dist.] April 23, 2012) (per curiam)
Panel consists of Justice Keyes, Justice Bland, and Justice Sharp.

Appeal from 269th District Court of Harris County (Judge Dan Hinde)

Do-it-Yourself in Justice Court (JP Court) not a good idea, much less on appeal

Pro Se Litigants (parties acting as their own attorney, also called pro-pers elsewhere) almost always come to grief, and have their legal incompetence pointed out for the whole world to see if they insist on pursuing their case in the court of appeals, as illustrated for the umptieth time in the following ….   

MEMORANDUM OPINION

In this forcible detainer case, [former homeowner], acting pro se, appeals the trial court’s judgment granting Wells Fargo Bank, National Association, as Trustee for Securitized Asset-Backed Receivables, LLC 2005 FR3 Mortgage Pass-Through Certificates, Series 2005-FR3 (Wells Fargo) possession of [former home  owner]’s former residence.  [Former home  owner] complains that the trial court erred by (1) denying her the opportunity to seek legal counsel; (2) awarding possession to Wells Fargo in spite of a conflicting claim to ownership; (3) failing to address Wells Fargo’s failure to attend court-ordered mediation; and (4) abusing its authority by requiring her to post a $34,200 supersedeas bond for the appeal.  We hold that [former home  owner] waived these complaints and affirm.

Background  

After [former home  owner] defaulted on her mortgage, her private residence became the subject of a nonjudicial foreclosure sale.  Wells Fargo became owner of the residence under a substitute trustee’s deed.  [former home  owner] continued to live in the residence, so Wells Fargo instituted this forcible detainer lawsuit in justice court to obtain possession of the property.  The justice court granted Wells Fargo possession of the property, and [former home  owner] appealed that judgment to the county court at law.  The court at law tried the case de novo and entered final judgment in favor of Wells Fargo.

Discussion

In its response brief, Wells Fargo contends that [former home  owner] failed to preserve any of her complaints on appeal.  In order to properly preserve a complaint for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion and (2) the trial court ruled on or refused to rule on the request, objection, or motion.  Tex. R. App. P. 33.1(a).  This rule applies equally to pro se litigants as it does to those represented by counsel.  “Pro se litigants,” like [former home  owner], “are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedure.”  Hope’s Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107 (Tex. App.—Dallas 2005, pet. denied); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ); see West Columbia Nat’l Bank v. Griffith, 902 S.W.2d 201, 206 (Tex. App.—Houston [1st Dist.] 1995, writ denied); accord Scoville v. Shaffer, 9 S.W.3d 201, 204 (Tex. App.—San Antonio 1999, no pet.); see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978).

With respect to [former home  owner]’s first complaint, the record nowhere reflects that [former home  owner] asked for additional time to seek legal counsel before trial or that the trial court denied such a request.  On the contrary, the trial court’s final judgment states, “Defendant Cynthia [former home  owner] appeared pro se and announced ready.”  After the close of trial, [former home  owner] asked the trial court, “Could I have gotten an attorney?”  As [former home  owner]’s question reflects, this request was untimely.  Thus, [former home  owner] did not preserve this issue for appellate review.  See Tex. R. App. P. 33.1(a).

[former home  owner]’s complaint that the trial court’s ruling does not acknowledge a conflicting claim to ownership is likewise unpreserved.  [former home  owner] did not object to the admissibility of the evidence that Wells Fargo presented to the trial court, nor did she offer any evidence of her own to show that she or another had a superior right to immediate possession, which is the only issue in a forcible detainer action.  Tex. R. Civ. P. 746; see Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.).  To the extent [former home  owner] alleges that a conflicting right to ownership exists, that issue lies beyond the scope of a forcible detainer action.  Dormady, 61 S.W.3d at 557; see Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El Paso 1994, writ denied) (“Where title to the property is directly involved in the suit, the justice and county courts lack jurisdiction.”). 

With respect to [former home  owner]’s third issue, the record does not contain any written order requiring the parties to mediate their dispute.  It shows only that the trial court delayed entry of judgment for half an hour so that [former home  owner] could “go talk to” Wells Fargo’s counsel “and see if you can’t work out an arrangement.”  This language does not require Wells Fargo to take any action.  Further, [former home  owner] did not move for sanctions against Wells Fargo based on any failure to attend mediation.  As a result, [former home  owner] waived this issue as well.

[former home  owner] waived her final complaint, that the trial court abused its authority in requiring her to supersede the judgment, by failing to present it to the trial court in the first instance.  The record shows that, although the justice court granted [former home  owner]’s request to proceed in forma pauperis, [former home  owner] informed the court that she was going to post the bond “right now because I do have $34,000.”  By agreeing to post the bond, [former home  owner] waived any complaint about the bond requirement.[1] 

Conclusion

We hold that [former home  owner] waived her appellate complaints.  We therefore affirm the judgment of the trial court.

                                                                      Jane Bland

                                                                      Justice

Panel consists of Justices Keyes, Bland, and Sharp.

SOURCE:  First Court of Appeals - 01-10-00931-CV - 4/12/12 [ "former home owner" substituted for name of appellant ]

Errors to avoid when seeking mandamus relief in the court of appeals

Fourteenth Court of Appeals panel finds pro se petition for writ of mandamus defective and denies it. To its credit, the panel identifies the deficiencies in its per curiam opinion, thus reminding other would-be applicants ("relators") and their counsel - if any - of the formal requirements for mandamus relief.

PRO SE LITIGANT GETS MORE THAN A ONE-LINER (NON) OPINION

Mandamus relief is rarely granted in any event, but appellate panels routinely dispose of such petitions without any explanation, by merely issuing one-line orders stating that the petition is denied.

M E M O R A N D U M O P I N I O N

On August 12, 2009, relator, David Smotherman, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In his petition, relator requests that we compel the Honorable James H. Shoemake, presiding judge of the 434th District Court of Fort Bend County, to rule on his pending motion for appointment of counsel and motion for photocopying.

Relator's petition does not comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 20.1 (requiring affidavit of indigence to proceed in court of appeals without advance payment of costs); Tex. R. App. P. 52.3(a) (requiring complete list of all parties, and names and addresses of all counsel); Tex. R. App. P. 52.3(j) (requiring certification that every factual statement in petition is supported by competent evidence in appendix or record); Tex. R. App. P. 52.7(a)(1) (requiring relator to file certified or sworn copy of every document that is material to his claim for relief).

Relator has not established his entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relator's petition for writ of mandamus.

PER CURIAM

In Re Smotherman (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(per curiam mandamus denial) (mandamus petition was defective, errors to avoid when filing a petition for writ of mandamus) MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Frost and Brown 14-09-00692-CV In Re David Smotherman Appeal from 434th Judicial District Court of Fort Bend County

Another Pro-Se Appellant Gets Routed

He who represents himself has a _______ for counsel, especially in the absence of familiarity with the appeallate proces.

Reed v. REO Properties Corp. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Alcala) (waiver of appeal, inadequate briefing)
Opinion by Justice Alcala Before Justices Nuchia, Alcala and Hanks
01-06-00637-CV Willis C. Reed v. REO Properties Corp.Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Representatives of parties: Appellant pro se Appellee: Attorney Rex L. Kesler
Disposition: Affirmed

Waiver of Appeal

Reed fails to present any clear grounds for reversal on appeal and fails to cite to the record or to any authority in his brief.

Texas Rule of Appellate Procedure 38.1(h) requires that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(h). “Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Id. “Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority or cites only to a single non-controlling case.” Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Reed’s brief does not present any grounds for reversal of the trial court’s judgment nor does it contain a single citation to a legal authority or the record. We therefore hold that Reed has waived his right of appeal due to inadequate briefing. Tex. R. App. P. 38.1(h); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Conclusion

We affirm the judgment of the trial court.

Withdrawal of counsel for nonpayment of fees gets clients no sympathy

Denial of Motion for Continuance (made orally in mid-trial) was not error, court of appeals says.

Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008) (Hanks)

In issue two, the Loftons argue that the trial court erred in refusing to allow them sufficient time to retain legal counsel by denying their request to continue the case.

We review the grant or denial of a motion for continuance for an abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not overrule the trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner “without reference to any guiding rules and principles.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

The Loftons’ attorney withdrew from the case. The Loftons contend that they were not notified of the withdrawal hearing or informed that the attorney had withdrawn. Once they were notified, the Loftons represent that they “sought diligently to secure legal representation in the rural and surrounding area where they reside.” They further assert that, due to their “extremely modest means, ethnicity, and lack of sophistication,” they should be given additional time to find competent counsel.

The record reflects that the Loftons’ attorney withdrew because the Loftons had not paid his fees.

It also reflects that the Loftons were aware of his withdrawal more than five months before the trial setting. Furthermore, the Loftons’ request for a continuance was made orally after Dyer had rested his case and after the Loftons had cross-examined two witnesses. Accordingly, we hold that the trial court did not abuse its discretion in denying the oral motion for continuance. See Taherzadeh v. Ghaleh-Assadi, 108 S.W.3d 917, 928 (Tex. App.—Dallas 2003, pet. denied).

We overrule issue two.

He who represents himself ...

Pro se divorce litigant avoided spending money on a lawyer of his own, but ends up having to pay for wife's lawyer. Panel of Houston Court of Appeals - referring to family court judge as an institutional "it" (as is the custom) - approves.

Appellant Has Not Shown The Trial Court Abused Its Discretion When It Ordered Appellant To Pay Appellee's Attorney's Fees

Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008) (Anderson) (divorce, attorney's fees as part of property division)

In his third issue, appellant contends the trial court abused its discretion when it awarded appellee her attorney's fees as part of the Final Decree of Divorce. In appellant's view, the trial court erred because appellee did not include a request for attorney's fees in any of her pleadings.
We review a trial court's award of attorney's fees for an abuse of discretion. Panozzo v. Panozzo, 904 S.W.2d 780, 785 (Tex. App.- Corpus Christi 1995, no writ). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding principals. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

A trial court may apportion attorney's fees in a divorce action as part of a just and right division of the property. Henry v. Henry, 48 S.W.3d 468, 480 (Tex. App. - Houston [14th Dist.] 2001, no pet.). Attorney's fees incurred by both spouses during the divorce are a factor to be considered by the trial court in making an equitable division of the marital estate. Carle v. Carle, 149 Tex. 469, 474, 234 S.W.2d 1002, 1005 (1950). The fact the final divorce decree in this case does not include the attorney fee award in the list of property awarded to appellee cannot be viewed as an indication the attorney's fees were not considered in the division. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).

In her Original Petition for Divorce, appellee asked the trial court, in the event the parties could not agree on a property division, to divide the marital estate in a manner the trial court deemed just and right and as provided by law. In addition, in appellee's Original Answer to appellant's counterclaim, appellee asked for her attorney's fees as part of an equitable division of the estate or, alternatively, they be taxed as costs.

Pleadings are to be liberally construed in favor of the pleader, particularly when, as here, the complaining party did not obtain a ruling on his special exceptions. See Tull v. Tull, 159 S.W.3d 758, 762 (Tex. App.- Dallas 2005, no pet.). The purpose of the pleading is to give notice of the claim involved. Id. Appellee's pleadings adequately apprised appellant that appellee was seeking the recovery of her attorney's fees as part of her suit for divorce.[1] We overrule appellant's third issue.

Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008) (Opinion by John Anderson)
(divorce, waiver of jury trial, local rules, attorney's fees)
Opinion by Justice John Anderson
14-07-00487-CV Richard Steven Patterson v. Gwendolyn Elizabeth Patterson
Appeal from 247th District Court of Harris County (Hon. Bonnie Crane Hellums)
Disposition: Affirmed

How to (not) lose right to jury trial

Right to trial by jury in family court easily waived by not objecting to bench trial, and making sure the objection makes it into the record.

Appellant Waived Consideration Of His Issue Contending The Trial Court Erred When It Allegedly Denied Appellant's Request For A Jury Trial

In his second issue, appellant argues the trial court abused its discretion when it denied his request for a jury trial. Appellee asserts appellant has waived this issue on appeal because he failed to preserve this issue for appellate review by objecting on the record to the trial court conducting a bench trial. Once again, we agree with appellee.

When a party has perfected his right to a jury trial in accordance with Rule 216 of the Texas Rules of Civil Procedure but the trial court proceeds to trial without a jury, the party must, to preserve error, object on the record or affirmatively indicate on the record it intends to stand on its perfected right to a jury trial. In re K.M.H., 181 S.W.3d 1, 8 (Tex. App.- Houston [14th Dist.] 2005, no pet.) (citing Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat'l Assurance Co., 875 S.W.2d 385, 387-88 (Tex. App.- Dallas 1993, no writ). The burden is on an appellant to bring forth a record sufficient to show reversible error. Sunwest, 875 S.W.2d at 388. Because there is no reporter's record in this appeal, even assuming without deciding appellant perfected his right to a jury trial, appellant cannot demonstrate he preserved this issue for appellate review by objecting on the record or otherwise affirmatively indicating on the record his intention to stand on his right to a jury trial. Accordingly, appellant has waived this issue on appeal. Tex. R. App. P. 33.1; Sunwest, 875 S.W.2d at 388. We overrule appellant's second issue.

Case involved pro-se litigant, but lesson equally important for lawyers to heed if appeal is a possibility.

Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008) (Anderson) (divorce, waiver of jury trial, local rules, attorney's fees)
AFFIRMED: Opinion by Justice John Anderson
14-07-00487-CV Richard Steven Patterson v. Gwendolyn Elizabeth Patterson
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums

Jury waiver not a rare occurrence: Here is another case of second thoughts about wisdom of bench trial that did not sway the judges on appeal

Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008)(Hanks) (real estate law, trespass to try title, adverse possession, right to try case to jury waived)

Right to Trial by Jury

In issue one, the Loftons argue that the trial court erred in denying them their right to a trial by jury.

A litigant waives the right to trial by jury if he participates in a bench trial without objection. See, e.g., In re D.R., 177 S.W.3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding that litigants waived their objection to bench trial by failing to object or otherwise indicate they possessed “perfected” right to jury trial until charge conference); In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio 1996, no writ) (observing that perfected right to jury trial in civil case may be waived by party’s failure to act when trial court proceeds with bench trial); Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ) (holding that, “when a party has perfected its right to a jury trial in accordance with rule 216 but the trial court instead proceeds to trial without a jury, the party must, in order to preserve any error by the trial court in doing so, either object on the record to the trial court’s action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial”).

The Loftons contend that they made a demand and paid a jury fee on October 24, 2001, and, when the case was called to bench trial, they requested that the trial proceed before a jury.

On August 2, 2005, all parties, through their respective attorneys, including the Loftons, waived their right to a jury trial and elected to try the case to the trial court without a jury. In February 2006, the trial court sent out a Notice of Bench Trial to be held on April 3, 2006. On March 6, 2006, the trial court sent out a Notice of Docket Call, which also reflected that the case was set for a bench trial. The Loftons never objected.

Accordingly, the trial court did not err in denying the Loftons’ belated request for a jury trial.

We overrule issue one.

Justice Hanks affirms dismissal of prisoner's civil rights complaint

Inmate's pro se suit was not accompanied by detailed disclosure of prior law suits.

Jemmerison v. Officer Salazar, No. (Tex.App.- Houston [1st Dist.] Nov. 8, 2007 (Hanks)(pro se prisoner suit)

Appeal from 412th Judicial District Court of Brazoria County
Disposition: Affirm dismissal of suit without hearing
Full style: Thomas Jemmerison v. Officer I. Salazar

MEMORANDUM OPINION BY JUSTICE GEORGE C. HANKS, JR.

In this pro se appeal, appellant, Thomas Jemmerison, challenges the trial court’s dismissal of his petition, in which he claimed Officer I. Salazar violated his rights under the Eighth Amendment and the Texas Department of Criminal Justice-Institutional Division (“TDCJ-ID”) Civil Rights Act. We affirm the trial court’s judgment.


Background


On May 19, 2006, Jemmerison filed a suit pro se and in forma pauperis against Salazar, a Darrington Trusty Camp correctional officer, claiming that she had violated his rights under the Eighth Amendment and TDCJ-ID Civil Rights Act while he was an inmate at the Darrington Trusty Camp. Specifically, Jemmerison accused Salazar of “harassing me, discriminating against me, retaliating against me, jeopardizing my safety, having malice against me, abusing her authority against me, showing favoritism against me, showing prejudices against me, being racism [sic] against me, and . . . [making] untrue allegations against me that I . . . tried to solicitate [sic] her.” In Jemmerison’s petition, he requested a pre-trial Spears [Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), overruled on other grounds, Neitzke v. Williams,490 U.S. 319, 324, 109 S. Ct. 1827, 1831 (1989).] hearing in order to present evidence and answer the trial court’s questions concerning his accusations. Jemmerison claims to have tried numerous times to inform various personnel about Salazar’s behavior and also claims to have filed many grievances against her.


In his complaint, Jemmerison sought to have Salazar relieved of her duties as a correctional officer. He included an affidavit seeking to press criminal charges against her. He also motioned for injunctions to be granted against various prison officials, including Salazar, to prevent them from retaliating against him by having him transferred. Despite this request, he claims on appeal that he was the victim of a retaliatory transfer to the Wynne Trusty Camp in April 2006.

Salazar never responded to Jemmerison’s petition, and the trial court, without granting Jemmerison any hearing, dismissed the suit. At the time of filing his appeal, Jemmerison was incarcerated at the Kyle Correctional Center. Jemmerison challenges the trial court’s dismissal and, along with claiming trial court error, seeks declaratory and injunctive relief and compensatory and punitive damages for emotional and mental injuries.In his first issue, Jemmerison argues that the trial court was wrong in dismissing his cause. He alleges that the trial court failed to follow the proper procedures concerning his request for a Spears hearing. He also asserts that his petition is not frivolous, because he proved that Salazar violated his Eighth Amendment rights by exposing him to an substantial risk of serious harm.


In his second issue, Jemmerison asserts various reasons why Salazar should be denied immunity in this action. He essentially alleges that, because Salazar was aware of her unprofessional behavior, she should be denied sovereign immunity, as well as judicial and quasi-judicial immunity.


In his third and fourth issues, Jemmerison brings factual and legal sufficiency complaints. His factual sufficiency complaints center on situations where Salazar allegedly made him use Clorox Bleach without the implementation of proper safety precautions. In his legal sufficiency argument, Jemmerison claims that Salazar violated his right to be free from cruel and unusual punishment under the Eighth Amendment.


Order of Dismissal


Jemmerison first attacks the trial court’s dismissal of his claim. In its order of dismissal, the trial court dismissed the suit for being “frivolous or malicious because [Jemmerison] has failed to state a claim that has an arguable basis in law or in fact as required by Section 13.001 (b) (2) Civ. Prac. Rem. Code and/or Section 14.003, Civ. Prac. Rem. Code, and/or [Jemmerison] failed to follow the provisions of Section 14.004, Civ. Prac. Rem. Code.” On appeal, Jemmerison makes a series of claims to address this dismissal. He asserts that the reasons for dismissal set out by the trial court are not true because the trial court erred by failing to follow the proper procedures regarding his motion for a Spears hearing. Jemmerison claims that he complied with Chapters 13 and 14 of the Texas Civil Practice and Remedies Code before filing his suit. He further alleges that the trial court committed a clear error in judgment. He also asserts that his claims are not frivolous or malicious because he first attempted to use Darrington Unit Grievance Procedures and informed Darrington Unit administrative personnel and TDCJ-ID Region III directors about his allegations.


We begin our analysis by examining the reasons given by the trial court for its dismissal. We review a dismissal under Chapter 14 for abuse of discretion. Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A trial court commits an abuse of discretion if it acts arbitrarily, capriciously, and without reference to guiding rules or principles. Id.


Jemmerison states that he asserted his claim under Chapters 13 and 14 before he filed his complaint. Under Section 14.004, an inmate filing an affidavit or unsworn declaration of an inability to pay costs shall also file a separate affidavit or declaration identifying previous pro se actions brought by the inmate. Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002). This separate affidavit or declaration must describe the former actions specifically by: “(A) stating the operative facts for which relief was sought; (B) listing the case name, cause number, and the court in which the suit was brought; (C) identifying each party named in the suit; and (D) stating the result of the suit, including whether the suit was dismissed as frivolous or malicious under Section 13.001 or Section 14.003 or otherwise.” Id. § 14.004(a)(2). The purpose of the Section 14.004 requirements is to assist the trial court in determining whether the inmate’s current suit is malicious or frivolous under Section 14.003(a). Gowan v. Tex. Dep’t. of Crim. Justice, 99 S.W.3d 319, 321 (Tex. App.—Texarkana 2003, no pet.).


In Jemmerison’s unsworn declaration of previous civil litigation, he described his past pro se actions as follows:


I, Jemmerison’s the offender claim in civil action # H-00-2272 was dismissed with prejudice on September 27, 2001, and my claim in civil action # P-00-CA-034 was dismissed without prejudice on May 14, 2002, and I did not appeal neither the above case’s.

This description is insufficient to meet the requirements of 14.004(a)(2). Jemmerison did not state the operative facts for which relief was sought, the case names, the courts in which he brought the suits, the parties named in the suits, or the results of the suits, including whether the suits were dismissed as frivolous or malicious under Section 13.001, Section 14.003, or otherwise. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004(2).

Therefore, the trial court did not abuse its discretion in dismissing Jemmerison’s complaint for his failure to comply with 14.004. Having found that Jemmerison failed to comply with the requirements of 14.004, we need not address whether his claim was frivolous. We also need not discuss whether the trial court erred in failing to follow the correct procedures concerning Jemmerison’s motion for a Spears hearing.


Conclusion


We affirm the judgment of the trial court.

George C. Hanks, Jr.
Justice


Panel consists of Justices Taft, Hanks, and Higley.