ACCEPTED 04-15-00287-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/29/2015 6:37:13 PM KEITH HOTTLE CLERK
No. 04-15-00287-CV
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FILED IN IN THE COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS 07/29/2015 6:37:13 PM AT SAN ANTONIO KEITH E. HOTTLE
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Clerk
CECIL ADAMS and MAXINE ADAMS, Appellants,
v.
HARRIS COUNTY, REBECCA ROSS, KATHLEEN KEESE, and CHRISTOPHER A. PRINE, Clerk of the Court, Appellees.
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On Appeal from the 269th District Court Harris County, Texas District Court Cause No. 2014-35653
BRIEF OF APPELLEE HARRIS COUNTY
________________________________________________________
VINCE RYAN Harris County Attorney
/s/ Keith A. Toler KEITH A. TOLER Assistant County Attorney State Bar No. 24088541 1019 Congress, 15th Floor Houston, Texas 77002 Phone: (713) 274-5265 Fax: (713) 755-8924 Email: Keith.Toler@cao.hctx.net
ATTORNEY FOR APPELLEE HARRIS COUNTY
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL In accordance with Texas Rule of Appellate Procedure 38.2(a), Appellee
Harris County provides the following minor correction to Appellants’ list of
parties’ counsel. Lead appellate counsel for Harris County is Keith Toler. Clinton
Gambil and Brian Quintero remain lead counsel for Harris County and Chris
Daniels, respectively, only in the trial court below. Mr. Toler’s information is as
follows:
Keith A. Toler Assistant County Attorney Office of Harris County Attorney State Bar No. 24088541 1019 Congress, 15th Floor Houston, Texas, 77002 Phone: (713) 274-5265 Fax: (713) 755-8924 Email: Keith.Toler@cao.hctx.net
ATTORNEY FOR APPELLEE HARRIS COUNTY
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TABLE OF CONTENTS Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities ................................................................................................. iv
Statement of the Case.................................................................................................2
Issue Presented ...........................................................................................................2
Statement of Facts ......................................................................................................2
Summary of the Argument.........................................................................................4
Argument....................................................................................................................5
Prayer .........................................................................................................................8
Certificate of Compliance ........................................................................................10
Certificate of Service ...............................................................................................11
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INDEX OF AUTHORITIES
Cases Page Allegiance Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d 855 (Tex. App.—Fort Worth 2011, no pet.) ............................... 7
Burnett Ranches, Ltd. v. Cano Pet., Inc., 289 S.W.3d 862 (Tex. App.—Amarillo 2009, pet. denied) ............................ 6
Carter v. Attorney Gen. of Texas, No. 04-13-00424-CV, 2014 WL 3843954 (Tex. App.—San Antonio, Aug. 6, 2014, no pet.) .......................................... 5
Castro v. Ayala, --- S.W.3d ---, No. 08-12-00142-CV, 2014 WL 1938837 (Tex. App.—El Paso 2013, no pet) ............................................................. 6, 7
Devine v. Dallas Cnty., 130 S.W.3d 512 (Tex. App.—Dallas 2004, no pet.) ....................................... 6 ERI Consulting Eng’rs v. Swinnea, 318 S.W.3d 867 (Tex. 2010) ........................................................................... 7 Frankoff v. Norman, 448 S.W.3d 75 (Tex. App.—Houston [14th Dist.] 2014, no pet.) .................. 6 Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279 (Tex. 1994) ........................................................................... 6 Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777 (Tex. App.—Dallas 2013, no pet.) ....................................... 6 Gurka v. Gurka, 402 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ................ 6
Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978) ........................................................................... 5
Republic Underwriters Ins. v. Mex-Tex, Inc., 150 S.W.3d 423 (Tex. 2004) ........................................................................... 5
iv
San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ................ 6
Sink v. Sink, 364 S.W.3d 340 (Tex. App.—Dallas 2012, no pet.) ................................... 6, 7
Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) ............ 6
WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) ......... 6
Rules Tex. R. App. P. 38.1............................................................................................... 5, 6
Tex. R. App. P. 38.2................................................................................................... 2 Tex. R. App. P. 41.3................................................................................................... 5
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No. 04-15-00287-CV
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IN THE COURT OF APPEALS FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS AT SAN ANTONIO
________________________________________________________
CECIL ADAMS and MAXINE ADAMS, Appellants,
v.
HARRIS COUNTY, REBECCA ROSS, KATHLEEN KEESE, and CHRISTOPHER A. PRINE, Clerk of the Court, Appellees.
________________________________________________________
On Appeal from the 269th District Court Harris County, Texas District Court Cause No. 2014-35653
BRIEF OF APPELLEE HARRIS COUNTY
________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellee Harris County files its brief in response to the Appellants’ brief,
respectfully showing this Court the following:
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STATEMENT OF THE CASE Nature of the Case Interpleader suit by Harris County involving funds deposited in the Harris County District Court’s registry by Appellee Ross pursuant to a final judgment in Cause Number 2010-12207, 269th District court, Maxine Adams and Cecil Adams v. Rebecca Ross. (C.R. at 6–11).
Trial Court 269th District Court, Harris County, Texas, the Honorable Dan Hinde
Course of Proceedings & The district court denied Appellants’ motion to Trial Court Disposition dismiss Harris County’s interpleader action. (C.R.
at 229). The district court granted Appellee Prine’s plea to the jurisdiction. (C.R. at 231). Appellants’ Notice of Appeal challenged both interlocutory orders. (C.R. at 259). Trial is set for August 17, 2015. (C.R. at 294).
ISSUE PRESENTED Whether Appellants waived their appeal of the district court’s denial of
Appellant’s motion to dismiss Harris County’s interpleader suit by failing to raise
the issue in Appellants’ Brief.
STATEMENT OF FACTS Pursuant to Texas Rule of Appellate Procedure 38.2, Appellee Harris
County challenges and supplements the Appellants’ Statement of Facts with the
following information.
This interpleader action arose out of a previous landlord-tenant lawsuit
between Appellants and Appellee Ross. Appellants, who are husband and wife,
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jointly won damages in that lawsuit but appealed several issues. After a
garnishment by Appellants on Ross while the appeal was pending, Ross deposited
the balance of the judgment due into the court’s registry, which represents the
corpus of the interpleader action. Appellants did not prevail on their appeal. 1
During the previous lawsuit between Appellants and Ross, one of the
Appellant spouses was granted pauper status for a period during the proceedings.
The appellate mandate created questions for the District Clerk and others.2
Harris County filed this interpleader action on June 20, 2014, relating to
putative claims and funds awarded from the litigation between Appellants and
Ross. The parties included (1) Appellants, tenants; (2) Ross, landlord; (3) Keese,
court reporter; (4) Harris County through services of its District Clerk; (5) Prine,
Court Clerk of the Fourteenth Court of Appeals of Texas; and (6) the State of
Texas. Harris County seeks an order from the district court determining the proper
partition of the money in the court’s registry.3
In this litigation, Appellants have filed numerous motions in the district
court.4 Two of those motions, decided against Appellants, are at issue in this
1 C.R. at 8 (Harris County’s Petition in Interpleader in the district court below, June 20, 2014). 2 C.R. at 8–9.
3 C.R. at 6–11.
4 C.R. at 13–16, 32–36, 66–68, 69–71, 106–07, 116–21, 128–29, 140–48, 183–85, 186–88, 232–37, 238–40.
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appeal. According to the Notice of Appeal, Appellants seek interlocutory review of
two orders issued by the district court on March 13, 2015: (1) order sustaining
Appellee Prine’s plea to the jurisdiction and dismissing with prejudice the Adams’s
cross- or counter-claims against Prine; and (2) order denying the Adams’ motion to
dismiss Harris County’s Interpleader Action.5
However, Appellants’ Brief does not address their motion to dismiss the
interpleader action. Instead, the Adams briefed only the plea to the jurisdiction
issue.6 In their Brief, the Adams prayed that this court “(1) revers[e] . . . the order
granting Mr. Prine’s plea to the jurisdiction and (2) in the interest of justice . . . that
this Court will review pending motions for review of interlocutory orders that
impairs the effectiveness of the relief sought or that may be granted on appeal.”7
SUMMARY OF THE ARGUMENT Appellants failed to brief their arguments, if any, challenging the district
court order denying Appellants’ motion to dismiss Harris County’s interpleader
action. To raise a claim on appeal, Appellants were required to, but did not, argue
5 C.R. at 259–62 (Notice of Appeal, Apr. 2, 2015); C.R. at 229 (Order granting Appellee Prine’s plea to the jurisdiction, Mar. 13, 2015); C.R. at 241 (Amended order granting Appellee Prine’s plea to the jurisdiction, Mar. 16, 2015); C.R. at 231 (Order denying Adams’s motion to dismiss, Mar. 13, 2015). 6 See generally Adams’ Appellate Brief, June 19, 2015.
7 Id. at 11.
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the claim and cite to legal authority. An appellee can hardly argue against an
argument that was never made.
Moreover, this is the only issue directed at Harris County because, unlike the
plea to the jurisdiction, Appellants’ motion to dismiss was directed at Harris
County’s interpleader petition. Therefore, the only issue raised against Harris
County was abandoned by Appellants’ failure to address the issue in their Brief.
ARGUMENT Appellants waived any argument on appeal regarding the district court’s
denial of Appellants’ motion to dismiss the interpleader action.8 An appellant
waives any issue that is not properly supported in the party’s brief. 9 To properly
support an argument, Texas Rule of Appellate Procedure 38.1(i) requires a brief to
“contain a clear and concise argument for the contentions made, with appropriate
8 This is the only challenge directed at Harris County. Appellants’ other issue regarding the district court’s grant of Appellee Prine’s plea to the jurisdiction is not directed at Harris County and is not discussed in this Brief. 9 Republic Underwriters Ins. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). To the extent that precedent from this Court is inconsistent with precedent of the First Court of Appeals from which this case was transferred by order of the Texas Supreme Court, this Court “must decide the case in accordance with the precedent of the [First Court of Appeals] under principles of stare decisis . . . ” Tex. R. App. P. 41.3.
A pro se litigant is held to the same standard as litigants represented by counsel “or else they would be given an unfair advantage over litigants represented by counsel.” Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (citations omitted). See also Carter v. Attorney Gen. of Texas, No. 04-13-00424-CV, 2014 WL 3843954, at *4 (Tex. App.—San Antonio, Aug. 6, 2014, no pet.) (overruling pro se litigant’s issues that were “not adequately briefed under Rule 38.1 . . . ”).
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citations to authorities and to the record.”10 An appellant must argue that specific
legal authority supports her position based on the facts in the record.11
An appellant’s “failure to provide appropriate record citations or a
substantive analysis waives an appellate issue.”12 As the Fifth Court of Appeals has
explained,
Stated otherwise, an appellant must provide such a discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Appellate courts must construe briefing requirements reasonably and liberally, but a party asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law support his contention.13
10 Tex. R. App. P. 38.1(i).
11 See, e.g., Frankoff v. Norman, 448 S.W.3d 75, 87–88 (Tex. App.—Houston [14th Dist.]
2014, no pet.) (finding waiver of error because appellant included no legal argument or analysis explaining how trial court ruling was abuse of discretion); Castro v. Ayala, --- S.W.3d ---, No. 08-12-00142-CV, 2014 WL 1938837, at *5 (Tex. App.—El Paso 2013, no pet) (finding waiver of several arguments because appellant provided no analysis or authority to support issue on appeal); Burnett Ranches, Ltd. v. Cano Pet., Inc., 289 S.W.3d 862, 870 (Tex. App.—Amarillo 2009, pet. denied) (finding waiver of error where argument was conclusory on some issues and failed to explain why objections were deficient). 12 Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994);
Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 783 (Tex. App.—Dallas 2013, no pet.) (citing WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Devine v. Dallas Cnty., 130 S.W.3d 512, 513–14 (Tex. App.—Dallas 2004, no pet.). See also Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—Dallas 2012, no pet.) (citations omitted) (“Bare assertions of error, without argument or authority, waive error.”) 13 Gonzalez, 418 S.W.3d at 784 ((citing and quoting Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (citing also San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). See also Gurka v. Gurka, 402 S.W.3d 341, 349–50 (Tex. App.— Houston [14th Dist.] 2013, no pet.) (overruling issue where appellants “offer[ed] no analysis or citation to authority supporting their position that the trial court abused its discretion . . . ”).
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If an issue is not properly briefed, an appellate court has “no duty, or even right, to
perform an independent review of the record and applicable law to determine if
there was error.”14
Here, Appellants abandoned their challenge to the district court order
denying Appellants’ motion to dismiss the interpleader action. Appellants raised
the issue in the Notice of Appeal. However, Appellants failed to mention that order
at all in their Brief, much less provide a sufficient discussion to maintain the point
at issue. Appellants put forth no argument or analysis showing that the record and
the law support their contentions. Instead, Appellants’ brief focused exclusively on
their challenge to the district court order granting Appellee Prine’s plea to the
jurisdiction. 15
The closest Appellants came to raising the issue regarding the motion to
dismiss is in the final sentence of the prayer section of Appellants’ Brief, which
states that “in the interest of justice, pursuant to TEX. R. APP. P. 29.6 Adams pray
that this Court will review pending motions for review of interlocutory orders that
14 Sink, 364 S.W.3d at 346 (citations omitted). See also Castro, 2014 WL 1938837, at *5 (citing ERI Consulting Eng’rs v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010); Allegiance Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d 855, 873 (Tex. App.—Fort Worth 2011, no pet.)) (“We are under no obligation to make an appellant's arguments for her and when an issue is inadequately briefed, lacking a substantive analysis and citation to legal authority, it presents nothing for our review.”). 15 Indeed, Appellants’ Brief lists Prine as an “Appellee” whereas Appellants only list Harris County as an “Additional Part[y] to the Suit,” which is further proof that Appellants abandoned their appeal against Harris County. Brief at i (Identity of Parties and Counsel).
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impairs the effectiveness of the relief sought or that may be granted on appeal.”16
This is wholly insufficient to maintain a claim or provide any point of argument
against which Appellee Harris County may attempt to refute. Therefore,
Appellants have waived their appeal of the district court’s order denying
Appellants’ motion to dismiss the interpleader action.17
PRAYER Appellants abandoned their challenge to the district court order denying
Appellants’ motion to dismiss Harris County’s interpleader action by failing to
address or provide any argument in support of their contentions in Appellants’
Brief. Therefore, Appellants have waived this argument on appeal.
For these reasons, Appellee Harris County respectfully prays that this Court
find that Appellants have waived any challenge to the district court order denying
Appellants’ motion to dismiss, find that the district court order denying
Appellants’ motion to dismiss be affirmed, and grant any and all relief to which
Appellee Harris County shows itself entitled.
Respectfully submitted,
VINCE RYAN Harris County Attorney
16 C.R. at 11.
17 In the unlikely event that this Court disagrees that the Appellants waived their appeal of the district court order denying Appellants’ motion to dismiss, Appellee Harris County respectfully requests leave to supplement its Brief.
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/s/ Keith A. Toler KEITH A. TOLER Assistant County Attorney State Bar No. 24088541 1019 Congress, 15th Floor Houston, Texas 77002 Phone: (713) 274-5265 Fax: (713) 755-8924 Email: Keith.Toler@cao.hctx.net
ATTORNEY FOR APPELLEE HARRIS COUNTY
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CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this
document was produced on a computer using Microsoft Word and contains 1,767
words, as determined by the computer software’s word-count function, excluding
the portions of the document exempted by Texas Rule of Appellate Procedure
9.4(i)(1). I further certify that the form of this brief meets the requirements of
Texas Rule of Appellate Procedure 9.4.
/s/ Keith A. Toler KEITH A. TOLER Assistant County Attorney
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CERTIFICATE OF SERVICE I hereby certify that on this the 29th day of July, 2015, a true and correct
copy of the foregoing was served by electronic transmission and certified mail,
return receipt requested, to Appellants Cecil and Maxine Adams, and by electronic
transmission to counsel for the other parties.
Cecil & Maxine Adams Jayson Booth 5510 Rice, #1206 Booth Richey, LLP Houston, Texas 77081 3730 Kirby Dr., Ste. 777 cecillovesmax@sbcglobal.net Houston, Texas 77098 Pro Se, Appellants jbooth@boothricheylaw.com Sent via certified mail and email Attorney for Kathleen Keese, Appellee Sent via electronic transmission
Christin Cobe Vasquez Timothy J. Henderson Office of Texas Attorney General Attorney at Law P.O. Box 12548 6300 West Loop South, Ste. 280 Austin, Texas 78711-2548 Houston, Texas 77401 christin.vasquez@texasattorneygeneral.gov timjhenderson@msn.com Attorney for Christopher A. Prine, Appellee Attorney for Rebecca Ross, Appellee Sent via electronic transmission Sent via electronic transmission
/s/ Keith A. Toler KEITH A. TOLER Assistant County Attorney