Floyd Jimison, by His Next Friend, Tommy Parker v. Cynthia Phillips-Price

• Court: Court of Appeals of Texas
• Decided: January 29, 2024
• Docket: 07-23-00250-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00250-CV

FLOYD JIMISON, BY HIS NEXT FRIEND, TOMMY PARKER, APPELLANT

V.

CYNTHIA PHILLIPS-PRICE, APPELLEE

On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. DC-2023-CV-0433, Honorable Les Hatch, Presiding

January 29, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Floyd Jimison, as “next friend” of himself, appeals from the trial court’s order

dismissing his suit against appellee Cynthia Phillips-Price. We affirm.

Background

Floyd Jimison suffered a stroke in April 2022. While he was in the hospital, Phillips-

Price allegedly perpetrated a fraud concerning Jimison’s home. Thereafter, Jimison sued

Phillips-Price for fraud concerning the ownership of the home located on Ivory Avenue in

Lubbock, Texas. The suit was brought on behalf of Floyd Jimison by “Rabbi” Tommy L. Parker as “next friend.” Moreover, only Parker’s signature appears on the petition. None

other does.

Phillips-Price filed a motion requesting that Parker show authority to act as next

friend. See TEX. R. CIV. P. 12 (specifying a procedure by which the court may determine

whether an attorney has authority to act). Evidence at the ensuing hearing revealed that

Parker was not a licensed attorney. Yet, he believed he could act for Jimison in the

capacity of “next friend,” under Texas Rule of Civil Procedure 44. See TEX. R. CIV. P. 44

(permitting minors, lunatics, idiots or persons non compos mentis lacking a legal guardian

to sue and be represented by a “‘next friend’”). Nevertheless, Parker provided no

evidence of Jimison’s being a minor, lunatic, idiot, or a person non compos mentis.

Thereafter, the trial court found Jimison’s petition to be a nullity and dismissed the

suit. It did so because, among other things, Parker failed to prove “he is eligible for next

friend representation per TRCP 44” and “there was no evidence that a court appointed”

Parker to be Jimison’s legal guardian. This appeal ensued.

Analysis

Through his single appellate issue, Jimison contends the trial court reversibly erred

in dismissing his case. As an initial matter, we note that under Texas Rule of Appellate

Procedure 38.1, an appealing party must, among other things, include in the brief 1) a

recitation of facts, 2) a summary of the argument, and 3) citation to the record and

pertinent authority coupled with substantive analysis. TEX. R. APP. P. 38.1(g), (h), (i). This

is true even of pro se litigants. Walker v. Hansford, No. 07-20-00229-CV, 2021 Tex. App.

LEXIS 8562, at *3 (Tex. App.—Amarillo Oct. 21, 2021, no pet. (mem. op.). Failure to cite

legal authority or provide substantive analysis of the legal issue presented constitutes a

2 waiver of that issue on appeal. Handy v. 1100 Reinli St. LLC, No. 07-23-00025-CV, 2023

Tex. App. LEXIS 5629, at *4 (Tex. App.—Amarillo July 31, 2023, pet. denied) (mem. op.).

Neither Jimison’s initial nor “corrected brief” complies with the foregoing

requirements. 1 More importantly, his brief includes only bare assertions of error without

any substantive argument or analysis applying legal authority to evidence of record. We

have no sua sponte obligation to do any of that for him. Jackson Walker, LLP v. Kinsel,

518 S.W.3d 1, 18 (Tex. App.—Amarillo 2015), aff’d on other grounds, 526 S.W.3d 411

(Tex. 2017); see Hornbuckle v. State Farm Ins., No. 02-15-00387-CV, 2016 Tex. App.

LEXIS 11197, at *7-8 (Tex. App.—Fort Worth Oct. 13, 2016, no pet.) (mem. op.) (stating

that the court has no duty to brief issues for an appellant). Consequently, Jimison’s issue

is inadequately briefed, presents nothing for our review, and, therefore, is waived. See

also Approximately $23,606.00 U.S. Currency v. State, No. 07-19-00297-CV, 2020 Tex.

App. LEXIS 2602, at *8 (Tex. App.—Amarillo Mar. 27, 2020, no pet.) (mem. op.) (stating

that one must provide the court with citation to the record and substantive analysis of his

issue or risk waiver of the complaint).

Yet, even if we were to consider the merits of the appeal, we could not but find the

trial court’s decision correct. The very issue before us involving the very same “Rabbi

Tommy L. Parker” was addressed and resolved years ago in Jimison ex rel. Parker v.

Mann, 957 S.W.2d 860 (Tex. App.—Amarillo 1997, no writ). There, as here, the record

disclosed that Parker was not a licensed attorney. There, we held that Parker, being

unlicensed, could not represent another member of the Jimison family as “next friend.”

1 After receiving the initial appellant’s brief, we informed Jimison of its non-compliance with Texas

Rule of Appellate Procedure 38 and afforded opportunity to correct the defects.

3 Id. at 861. Here, we reiterate that holding 26 years later. The repeated invocation of

Texas Rule of Civil Procedure 44 matters not. It “does not grant unlicensed persons

authority to practice law under the auspices of ‘next friend.’” Id.

We overrule the sole issue before us and affirm the order of dismissal.

Brian Quinn Chief Justice