Cathy Enwere v. Dallas County Hospital District D/B/A Parkland Health & Hospital System

• Court: Court of Appeals of Texas
• Decided: November 1, 2023
• Docket: 05-22-01287-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed November 1, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01287-CV

CATHY ENWERE, Appellant V. DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH & HOSPITAL SYSTEM, Appellee

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-22-09672

MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Breedlove Opinion by Justice Reichek Cathy Enwere, pro se, appeals the trial court’s order granting a plea to the

jurisdiction filed by Dallas County Hospital District d/b/a Parkland Health &

Hospital System (“Parkland”). For reasons that follow, we affirm.

Enwere was represented by counsel when she filed this lawsuit against

Parkland and two non-governmental defendants for personal injuries allegedly

caused by an elevator at a Parkland facility. She alleged that as she was getting into

an elevator, the doors closed on her without warning, causing her to fall. She

asserted claims against Parkland for negligence and premises liability. Parkland filed a plea to the jurisdiction. Parkland maintained that Enwere

could not pursue both a general negligence claim and a premises liability claim

against it, and if she had a claim, it was for premises liability. Parkland argued the

trial court lacked subject matter jurisdiction over Enwere’s premises liability claim

because Enwere did not plead facts to demonstrate a waiver of Parkland’s

governmental immunity under the Texas Tort Claims Act (TTCA). To demonstrate

a waiver of governmental immunity, Enwere had to plead that a condition of

Parkland’s property created an unreasonable risk of harm, Parkland had actual

knowledge of the condition, Enwere lacked actual knowledge of the condition,

Parkland failed to exercise ordinary care to protect her from danger, and its failure

was a proximate cause of the injury. See, e.g., City of Richardson v. Justus, 329

S.W.3d 662, 666 (Tex. App.—Dallas 2010, no pet.); see also TEX. CIV. PRAC. &

REM. CODE ANN. § 101.022. Parkland claimed Enwere had not alleged sufficient

facts to show it had actual knowledge of an unreasonably dangerous condition.

Before any response was filed, Parkland filed a supplemental brief along with

video of the incident. Parkland argued the “indisputable video evidence”

conclusively proved the elevator did not cause Enwere to fall. The video does not

show the elevator doors closing on Enwere as alleged. It shows that Enwere tripped

on her way to catch the elevator and fell near the elevator doors. Parkland argued

that because the elevator had nothing to do with Enwere’s fall, she could not offer

–2– jurisdictional evidence to establish a claim that falls within a waiver of Parkland’s

governmental immunity.

About a week later, and the day before a scheduled hearing on the plea to the

jurisdiction, Enwere’s attorney filed a motion to withdraw on grounds she was

unable to effectively communicate with her client. At the hearing the next day,

counsel reported that Enwere had instructed her not to act on her behalf. The trial

court continued the hearing on the plea to the jurisdiction to allow Enwere to find

new counsel. A couple of weeks later, with no objection from Enwere to the motion

to withdraw, the court permitted her attorney to withdraw.

Enwere did not obtain new counsel, and the day before the rescheduled

hearing on the plea to the jurisdiction, she filed a pro se amended petition. She

alleged Parkland did not have governmental immunity, and she continued to assert

claims for negligence and premises liability. In addition to allegations about the

elevator, she alleged for the first time that Parkland failed to provide proper medical

care after she fell.

Parkland addressed Enwere’s new allegations at the hearing. It argued the

court lacked jurisdiction over any medical negligence claim because Enwere failed

to bring a claim within a waiver of immunity and failed to give pre-suit notice of the

claim as required by § 101.101 of the TTCA. Regarding the premises liability claim,

Parkland argued that Enwere had not alleged Parkland had actual knowledge of any

defect in the elevator and asserted the video negated the fact that the incident arose

–3– from any condition of the elevator. The trial court granted the plea to the jurisdiction

and dismissed Enwere’s claims against Parkland with prejudice. This interlocutory

appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).

On January 27, 2023, this Court notified Enwere that her brief failed to

comply with Rule 38 of the Texas Rules of Appellate Procedure. Enwere was

notified her brief was deficient because it did not contain: (1) a table of contents;

(2) an index of authorities; (3) a concise statement of the case; (4) a concise statement

of facts supported by record references; and (5) argument supported by appropriate

citations to authorities and the record. See TEX. R. APP. P. 38.1(b), (c), (d), (g), and

(i). We cautioned Enwere that failure to file an amended brief within ten days may

result in dismissal of the appeal. Enwere did not file an amended brief.

We construe liberally pro se pleadings and briefs; however, we hold pro se

litigants to the same standards as licensed attorneys and require them to comply with

applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d 211, 211–12 (Tex.

App.—Dallas 2008, no pet.). To do otherwise would give a pro se litigant an unfair

advantage over a litigant represented by counsel. Id. at 212. When a party fails to

adequately brief a complaint, she waives the issue on appeal. Id.

Enwere’s brief lists twelve arguments and one “issue presented.” The

arguments she makes are unclear. Despite being given an opportunity to correct the

deficiencies in her brief, Enwere has failed to offer any meaningful legal analysis,

cite controlling legal authority, or reference the relevant portions of the record. We

–4– therefore conclude nothing is preserved for appellate review. See Gallagher v.

Paxton, No. 05-19-00902-CV, 2020 WL 1887893, at *1 (Tex. App.—Dallas Apr.

16, 2020, no pet.) (mem. op.); Willms v. Wilson, No. 05-09-01048-CV, 2010 WL

1495143, at *2 (Tex. App.—Dallas Apr. 15, 2010, no pet.) (mem. op.).

Further, to the extent we can understand Enwere’s brief, most of it involves

complaints about her lawyer. None of her arguments involve the issue presented by

Parkland’s plea to the jurisdiction—whether Enwere alleged a claim falling within

the TTCA’s limited waiver of governmental immunity. Enwere has not shown the

trial court erred in granting the plea to the jurisdiction.

We affirm the trial court’s order granting Parkland’s plea to the jurisdiction.

/Amanda L. Reichek/ AMANDA L. REICHEK 221287F.P05 JUSTICE

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CATHY ENWERE, Appellant On Appeal from the 95th District Court, Dallas County, Texas No. 05-22-01287-CV V. Trial Court Cause No. DC-22-09672. Opinion delivered by Justice DALLAS COUNTY HOSPITAL Reichek. Justices Partida-Kipness DISTRICT D/B/A PARKLAND and Breedlove participating. HEALTH & HOSPITAL SYSTEM, Appellee

In accordance with this Court’s opinion of this date, the trial court’s November 15, 2022 order granting appellee’s plea to the jurisdiction is AFFIRMED.

It is ORDERED that appellee Dallas County Hospital District d/b/a Parkland Health & Hospital System recover its costs of this appeal from appellant Cathy Enwere.

Judgment entered this 1st day of November 2023.

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