ACCEPTED 04014-00729-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/4/2015 12:03:46 PM KEITH HOTTLE CLERK
NO. 04014-00729-CV
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS IN THE 02/4/2015 12:03:46 PM FOURTH COURT OF APPEALS KEITH E. HOTTLE SAN ANTONIO, TEXAS Clerk
JEREMIAH TROMBLY, Appellant, V. DEPARTMENT OF THE AIR FORCE, Appellee
Appeal from the 198th Judicial District Court, Bandera County, Texas Trial Court No. CV-14-0000304
APPELLEE’S BRIEF FEBRUARY 4, 2015
RICHARD L. DURBIN, JR. ACTING UNITED STATES ATTORNEY
By: /s/Robert Shaw-Meadow ROBERT SHAW-MEADOW Assistant United States Attorney Texas Bar No. 18162475 601 N.W. Loop 410, Suite 600 San Antonio, Texas 78216 Telephone: (210) 384-7355 Facsimile: (210) 384-7312 Rob.shaw-meadow@usdoj.gov ATTORNEYS FOR APPELLEE IDENTITY OF PARTIES AND COUNSEL
Judge Presiding at Trial:
The Honorable M. Rex Emerson 198th Judicial District Court, Bandera County, Texas
Plaintiff and Appellant:
JEREMIAH TROMBLY
Defendant and Appellee:
DEPARTMENT OF THE AIR FORCE
Appellee’s Counsel on Appeal:
Robert Shaw-Meadow Assistant United State Attorney 601 NW Loop 410, Suite 600 San Antonio, Texas 78216
Defendant’s Trial Counsel:
No appearance necessary or made
i TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ....................................................................................iv
STATEMENT OF THE CASE ..................................................................................2
ORAL ARGUMENT .................................................................................................2
ISSUES PRESENTED ON APPEAL........................................................................ 2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF ARGUMENT .................................................................................4
ARGUMENT .............................................................................................................5
Issue No. 1- Trombly has failed to file a brief in compliance with the Texas Appellate Rules and thus any issues raised are waived due to inadequate briefing .......................................................................................................................5 A. Trombly’s Brief Fails Because It Contains No Record Citations ................... 6 B. Trombly’s Appeal Should be Dismissed for Want of Prosecution Because He Has Failed to Provide Any Argument Setting Out What Errors Were Allegedly Committed By the Trial Court. Tex R. App. P. 38.1(5), (8) ......................................................................................................8
Issue No. 2- The trial court’s decision dismissing Trombly’s Petition for review for lack of jurisdiction should be affirmed ..................................................11 A. Trombly’s Petition for Review Was 17 Days Too Late ................................13 B. Trombly’s Petition for Review Failed to Name or Serve the Texas Workforce Commission as a Necessary Party...............................................15
ii PRAYER ..................................................................................................................17
CERTIFICATE OF SERVICE ................................................................................18
CERTIFICATE OF COMPLIANCE .......................................................................18
iii TABLE OF AUTHORITIES
State Cases
Barrack v. Washington Mutual, No. 14-05-01220-CV, 2007 WL 1215784 (Tex.App.—Houston [14th Dist.] Apr. 26, 2007, no pet.) ........................................................................................12
Berardinelli v. Pickels, No. 05-12-01390-CV, 2014 WL 6560029 (Tex. App.—Dallas Oct. 23, 2014, no pet.) ........................10
Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893 (Tex. App.—Dallas 2010, no pet.)............................................................. 7, 9, 11
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928 (Tex. App. —Houston [14th Dist.] 2008, no pet.) ................................................9
Castillo v. Peeples, No. 04-13-00311-CV, 2014 WL 1089750 (Tex. App.—San Antonio Mar. 19, 2014, pet. denied) ..................................7, 10
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279 (Tex. 1994)..........9
Hernandez v. Tex. Workforce Comm’n, No. 01-09-01085-CV, 2011 WL 346291 (Tex. App. Houston—[1st Dist.] Feb. 3, 2011, no pet.)(mem. op.) ........................................................................................ 14, 16
Hornbuckle v. Bank of America, N.A., No. 02-12-00223-CV, 2013 WL 452183 (Tex. App.—Fort Worth Feb. 7, 2013, pet. denied) ..............10
Lockard v. Deitch, 855 S.W. 2d 104 (Tex. App.—Corpus Christi 1993, no writ) .........................................................15
Lott v. First Bank, No. 04-13-00531-CV, 2014 WL 4922896 (Tex. App.—San Antonio, Oct. 1, 2014, no pet.) ...............................................10
iv Mansfield State Bank v. Cohn, 573 S.W.2d 181 (Tex. 1978) ..................................11
Marin Real Estate Partner v. Vogt, 373 S.W.3d 57 (Tex. App. – San Antonio 2011, no pet.) .........................................................6, 10
Petty v. Petty, No. 13-14-00051-CV, 2014 WL 5500459 (Tex. App.—Corpus Christi Oct. 30, 2014, no pet.) ..........................................10
Prairie View A&M Univ. v. Chathra, 381 S.W.3d 500 (Tex. 2012) .......................14
Richardson v. Tex. Workforce Comm’n, 2014 WL 2538621 (Tex. App.—Houston [1st Dist.] 2014 pet. denied) ...........................................14
Stoker v. Tex. Workforce Comm’n, 402 S.W.3d 926 (Tex. App.—Dallas 2013, no pet.)......................................................................16
Tex. Workforce Comm’n v. Smith, No. 14-11-00003-CV, 2011 WL 4507077 (Tex. App.—Houston [14th Dist.] Sept. 29, 2011, no pet.)(mem. op.) .............14
Valadez v. Auitia, 238 S.W.3d 843 (Tex. App.–El Paso 2007, no pet.) ..............4, 10
Villages of Greenbriar v. Torres, 874 S.W.2d 259 (Tex. App.—Houston [1st Dist.] 1994, writ denied) .........................................14
State Rules
Tex. R. App. P. 9.5(d), and (3) ..................................................................................6
Tex. R. App. P. 38.1...............................................................................................5, 7
Tex. R. App. P. 38.8(a) ............................................................................................10
Tex. R. App. P. 38.9(a) ..............................................................................................6
Tex. R. App. P. 42.3(b) ............................................................................................10
Tex. R. App. P. 42.3(c) ............................................................................................10
v Statutes
Texas Labor Code § 212.201 ...................................................................... 12, 13, 15
Texas Labor Code § 212.206 ............................................................................ 15, 16
Other Authorities
40 Tex. Admin. Code § 815.17 ..................................................................................8
vi NO. 04014-00729-CV
IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
JEREMIAH TROMBLY, Appellant, V. DEPARTMENT OF THE AIR FORCE, Appellee
Appeal from the 198th Judicial District Court, Bandera County, Texas Trial Court No. CV-14-0000304
APPELLEE’S BRIEF
The Department of the Air Force hereby submits its Appellee’s Brief, in
response to the January 1, 2015 Brief for Appellants. For clarity, Appellee will be
referred to as “the Air Force” and Appellant will be referred to as “Trombly.”
Citation to the Clerk’s Record and the Clerk’s 1st Supplemental Record will be
abbreviated as (CR_____) and (SCR ____).1 Citation to Appellee’s Appendix
will be (AF APPX ___).
1 For the Court’s convenience, the Clerk’s Record and Supplemental Record are attached in the Air Force’s Appendix. The Clerk’s Records received by the Air Force were not numbered. The Air Force has added page numbers in the Appendix in the bottom right corner. These page numbers refer to the page numbers in the respective pdf files. Four items are included in the Appendix: 1) Clerk’s Record; 2) Clerk’s 1st Supplemental Record; 3) Texas Labor Code excerpts; and, 4) Court’s Order of November 25, 2014; and 5) Clerk’s letter dated December 29, 2014. 1 STATEMENT OF THE CASE
This is an appeal challenging a decision by the 198th District Court
dismissing Jeremiah Trombly’s Petition for Review from a ruling by the Texas
Workforce Commission (“TWC”) denying him unemployment compensation
benefits. (AF APPX 1, CR 4-5). The trial court sua sponte dismissed the case for
lack of jurisdiction because it was untimely and all necessary parties had not been
properly served. (AF APPX 1, CR 10).
ORAL ARGUMENT
Oral argument is not requested. The Air Force does not believe it would
benefit the Court.
ISSUES PRESENTED ON APPEAL 2
ISSUE NUMBER 1:
Trombly has failed to comply with the appellate briefing rules and thus has
waived any argument on appeal.
2 The issues Trombly attempts to present in his brief should not be reached by the Court because they address the underlying merits of the TWC’s determination to deny benefits, and are not supported by any evidence or record citations. See Brief for Appellant, p. v. Although there is nothing in the record regarding the underlying TWC proceedings, the Air Force adamantly denies that it committed perjury or misled Trombly in settlement negotiations as alleged. 2 ISSUE NUMBER 2:
The trial court was correct in dismissing the case for lack of jurisdiction and
the decision should be affirmed.
STATEMENT OF FACTS
On September 26, 2014, Trombly filed a Petition for Review of an August
12, 2014, unemployment compensation decision from the TWC and served a copy
of the petition on the Air Force by mail. The TWC was not served. (AF APPX 1,
CR 4-5). On October 9, 2014, the district court dismissed the petition for want of
jurisdiction, finding that the Petition “was not timely filed and that all necessary
parties were not served.” (AF APPX 1, CR 10). Trombly initiated this appeal on
October 29, 2014, alleging he was entitled to a review of the benefits denial
decision by the TWC. (AF APPX 1, CR 11).
Trombly filed his [first] appellate brief on November 24, 2014. On
November 25, 2014, this Court ordered the brief stricken for Trombly’ s multiple
violations of Tex. R. App. P. 38.1. Trombly was ordered to file an amended brief
in compliance with the applicable rules by December 29, 2014. (See Order of
November 25, 2014) (AF APPX 4).
Trombly filed his [second] brief on December 29, 2014. This second brief
was verbatim identical to the brief he filed on November 24. Also on December
29, 2014, the Clerk notified Trombly that this brief was deficient, but did not order
3 rebriefing. Trombly was again put on notice that this Court could consider his
appellate complaints “waived due to inadequate briefing if the noted deficiencies
are not corrected prior to submission.” On January 1, 2015, Trombly filed his third
and final “Brief for Appellants.”
SUMMARY OF ARGUMENT
This Court should summarily affirm the trial court’s dismissal because
Trombly has failed to comply with clearly settled appellate briefing rules; because
Trombly has admitted that his Petition for Review was untimely; and, because
Trombly failed to name or serve the TWC as a necessary party.
The Court has given Trombly three bites at the apple and he still has not
complied with the Texas Rules of Appellate Procedure. Notwithstanding his
unrepresented status, “the law is clear that pro se litigants are held to the same
standards as licensed attorneys and must comply with all applicable rules of
procedure, including the rules governing appellate briefs.” (Order of November
25, 2014) (citing Valadez v. Auitia, 238 S.W.3d 843, 845 (Tex. App.–El Paso
2007, no pet.) (AF APPX 4). Trombly’s brief is deficient, inter alia, because it
does not once cite the record, and because he has failed to provide any argument
setting out what error was committed by the District Court. Rather, it is apparent
that Trombly wishes to improperly use this appellate forum to raise issues which
should have been raised to the District Court. Having failed to timely and 4 effectively present these issues to the District Court, Trombly may not raise them
for the first time on appeal.
In the alternative, and only if the Court rules that Trombly has not waived all
issues on appeal because of his deficient briefing, the Court should affirm the
198th District Court’s decision that Trombly’s untimely filing and failure to serve
the TWC deprived it of jurisdiction.
ARGUMENT
Issue No. 1 - Trombly has failed to file a brief in compliance with the Texas
Appellate Rules and thus any issues raised are waived due to inadequate briefing.
In its Order of November 25, 2014, the Court found, inter alia, that
Trombly’s submission flagrantly violated Tex. R. App. P. 38.1 because it did not
include:
(5) a brief statement of facts of the issues presented setting out what errors were allegedly committed by the trial court;
(6) include a statement of facts with record references;
(8) argument with appropriate citation to authorities and the appellate record; [or]
(10) an appendix
(Order of November 25, 2014, p. 1) (emphasis added) (AF APPX 4).
5 The Court further found that Trombly’s brief was deficient because a
certificate of service was not included as required by Rule 9.5(d), and (3). (Id. at p.
2). Trombly was specifically warned that:
If the amended brief does not comply with this order we ‘may strike the brief, prohibit (appellant) from filing another, and proceed as if (appellant) had failed to file a brief.’ …R. 38.9(a) … Even if we do not strike the brief and prohibit appellant from filing another brief, we may find that any issues raised by appellant are waived due to inadequate briefing, and overrule those issues. See, e.g., Marin Real Estate Partner v. Vogt, 373 S.W.3d 57, 75 (Tex. App. – San Antonio 2011, no pet.) …
[W]e cannot discern from appellant’s brief the nature of the action, the relief granted or denied below, nor the exact nature of the complaints appellant is asserting on appeal.
(Order of November 25, 2014, at p. 2).
Although Trombly corrected some of the deficiencies enumerated in the
Court’s Order of November 25, 2014, the January 1, 2015 Brief for Appellants
does not include a Certificate of Service; an Appendix; an explanation for how the
trial court committed error, or any citation to the record. This last failure, standing
alone, warrants dismissal of the appeal.
A. Trombly’s Brief Fails Because It Contains No Record Citations.
The record in this case consists solely of 25 pages -- an 18 page record
submitted by the District Clerk on October 24, 2014, and a 7 page Supplemental
6 Record submitted on November 3, 2014 (See AF APPX 1 and 2). Not a single
citation to the record is contained in the Brief for Appellants, or in Trombly’s first
two submissions.
In Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893 (Tex.
App.—Dallas 2010, no pet.), Plaintiffs were also proceeding pro se, and were
attempting to challenge the assessment of delinquent property taxes. Although the
Bollings’ appellate brief contained several record citations, the appeal was
nevertheless dismissed for failure to comply with the briefing requirements of the
Texas Rules of Appellate Procedure:
[To comply with rule 38.1], statements of fact must be supported by direct references to the record that are precise in locating the fact asserted. If record references are not made or are inaccurate, misstated or misleading, the brief fails.
315 S.W.3d at 896. See also Castillo v. Peeples, No. 04-13-00311-CV, 2014 WL
1089750, at *3 (Tex. App.—San Antonio Mar. 19, 2014, pet. denied) (“[D]espite
two specific warnings from this court about the lack of citation to the record and its
possible consequences, Castillo failed to include even a single citation to the
appellate record. Accordingly, we hold his complaint is inadequately briefed, and
therefore, waived.”).
7 B. Trombly’s Appeal Should be Dismissed for Want of Prosecution Because He Has Failed to Provide Any Argument Setting Out What Errors Were Allegedly Committed By the Trial Court. Tex. R. App. P. 38.1(5),(8).
This is the more fundamental flaw in Trombly’s appeal. As the Court
observed on November 25, “we cannot discern from appellant’s brief the nature of
the action, the relief granted or denied below, nor the exact nature of the
complaints appellant is asserting on appeal.” (Order of November 25, 2014, at p.
2) (AF APPX 4). After two further submissions, it is now clear that this action
involves the denial of unemployment compensations benefits, but Mr. Trombly has
utterly failed to set forth how the trial court committed any alleged errors.
Trombly refers to “40 TAC 815.17” on page v of his Brief regarding the
standard of review for a motion for rehearing, but he fails to state what the trial
court did in error or why the trial court’s decision should be reversed.
Furthermore, Trombly’s disagreement with what transpired at his subsequent
federal Merit System Protection Board hearing has nothing to do with his untimely
Petition for Review in the Texas trial court.
Indeed, Trombly’s only mention of the action taken by the 198th District
Court appears on page vi of his final Brief:
The District Court …summarily… dismissed the matter due to a time frame that was not met. The petition to the District Court indicated extenuating circumstances existed in that the
8 …Air Force…offered to ‘settle the matter…, delaying any timely filing [of the Petition for Review].’
Nowhere does Trombly indicate that the District Court’s dismissal on
timeliness grounds, was error, however. Nor does Trombly even argue that the
District Court had any discretion or authority to excuse his untimely filing or his
failure to serve a necessary party. The standard of review referenced by Trombly
sets forth the standard for how the TWC may grant a rehearing, and not how the
198th District Court should have reviewed Trombly’s appeal from the TWC
decision.
The appellant “must articulate the issue [the appellate court is] be[ing] asked
to decide,” and the Court must be able to “discern what question of law [it] will be
answering.” Bollling¸315 S.W.3d at 896. It is not the duty of this Court to search
the record for facts that may be favorable to Trombly’s position. See Fredonia
State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283-84 (Tex. 1994) (cited
with approval in Bolling). Nor is this Court responsible for identifying possible
trial court error. Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928,
931 (Tex. App. —Houston [14th Dist.] 2008, no pet.) (also cited with approval in
Bolling).
In this case, there can be no question that Trombly has filed a deficient final
brief. The Court and the Clerk of the Court sent Trombly notification that his prior
briefs were deficient. Specific deficiencies -- including Trombly’s failure to cite a 9 single reference to the record or any argument about how the record supports his
issues – were pointed out. See Order of November 25, 2014 at p. 2 (APPX 4);
Clerk’s Letter of December 29, 2014 (APPX 5). Similar failures have resulted in
several courts dismissing appeals under Tex. R. App. P. 38.8(a), 42.3(b) and
42.3(c). See, e.g., Petty v. Petty, No. 13-14-00051-CV, 2014 WL 5500459, at *2
(Tex. App.—Corpus Christi Oct. 30, 2014, no pet.); Berardinelli v. Pickels, No.
05-12-01390-CV, 2014 WL 6560029, at *3 (Tex. App.—Dallas Oct. 23, 2014, no
pet.); Hornbuckle v. Bank of America, N.A., No. 02-12-00223-CV, 2013 WL
452183 (Tex. App.—Fort Worth Feb. 7, 2013, pet. denied).
Relatedly, because Trombly has failed to comply with the Texas Rule of
Appellate Procedure, the Court Order and the Clerk’s instruction, such failure
operates as a waiver of any issue on appeal, and this appeal should be dismissed
for want of prosecution under Tex. R. App. P. 42.3(b) and Tex. R. App. P. 42.3(c).
See, e.g., Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no
pet.); Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—
San Antonio 2011, no pet.) (inadequate briefing waives the issue); Lott v. First
Bank, No. 04-13-00531-CV, 2014 WL 4922896, at *2 and *4 (Tex. App.—San
Antonio, Oct. 1, 2014, no pet.); Castillo v. Peeples, No. 04-13-00311-CV, 2014
WL 1089750, at *2 (Tex. App.—San Antonio, Mar. 19, 2014, pet. denied).
10 Trombly’s pro se status does not rescue his appeal from dismissal. A party
to civil litigation in Texas has the right to represent himself at trial and on appeal.
Bolling, 315 S.W.3d at 895. But this right carries with it the responsibility to
adhere to rules of evidence and procedure, including the rules of appellate
procedure if the party chooses to represent himself at the appellate level. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-185 (Tex. 1978); Bolling,
315 S.W.3d at 895. Courts regularly caution pro-se litigants -- as has this Court
repeatedly -- that they will not be treated differently from a party who is
represented by a licensed attorney. See Mansfield, 573 S.W.2d at 184-85; Bolling,
315 S.W.3d at 895.
Under these circumstances, where the Court cannot discern what questions
of law it will be answering, and it must speculate about what contentions are being
made, the brief fails and must be dismissed for failure to comply with the appellate
rules. Bolling, 315 S.W.3d at 896, 897.
Issue No. 2 – The trial court’s decision dismissing Trombly’s Petition for Review
for lack of jurisdiction should be affirmed.
As set forth in the Air Force’s Summary of Argument, there is no need for
the Court to even reach this second issue because Trombly failed to comply with
appellate briefing rules. Moreover, since Trombly has failed to file a brief in
substantial compliance with the Texas Rules of Appellate Procedure, this Court
11 may regard the Air Force’s brief as correctly presenting the case. Barrack v.
Washington Mutual, No. 14-05-01220-CV, 2007 WL 1215784, at *2 (Tex.App.—
Houston [14th Dist.] Apr. 26, 2007, no pet.).
If the Court deems it necessary to review the District Court’s decision,
however, it should be affirmed for two reasons: A) Trombly’s Petition for Review
was untimely; and, B) The Petition for Review failed to name or serve the TWC as
a necessary party.
Trombly’s final brief on appeal does not address the second issue at all, and
only quickly mentions the timeliness issue. Trombly admits his Petition was late,
fails to make any argument that the District erred in its jurisdictional ruling, and
only claims – without citation to the record or to case authority – that the Air
Force’s alleged settlement offer presented “extenuating circumstances” which
justified his late filing. (See Appellants’ Brief at p. vi, quoted at pp. 8-9, supra).
It is undisputed that on September 26, 2014, Trombly filed a Petition for
Review of a decision issued by the TWC on August 12, 2014. (AF APPX 1, CR
4). Trombly provided a copy of the Petition to the Air Force, but did not serve the
TWC. (AF APPX 1, CR 5). On October 9, 2014, the 198th Judicial District
Court, citing Texas Labor Code Chapter 212, dismissed Trombly’s Petition as
untimely filed and not for serving all the necessary parties, thereby depriving the
Court of jurisdiction. (AF APPX 1, CR 10).
12 A. Trombly’s Petition for Review Was 17 Days Too Late.
Texas Labor Code § 212.201(a) states: “A party aggrieved by a final
decision of the commission may obtain judicial review of the decision by bringing
an action in a court of competent jurisdiction for review of the decision against the
commission on or after the date on which the decision is final, and not later than
the 14th day after that date.”
According to Trombly’s Petition for Review (AF APPX 1, CR 4), TWC
issued its decision on or about August 12, 2014. TWC’s decision became final 14
days thereafter, on August 26, 2014. Accordingly, Trombly’s deadline to file the
Petition for Review expired September 9, 2014. Trombly did not file his Petition
for Review until September 26, 2014 (AF APPX 1, CR 4), which was 17 days too
late.
Trombly has admitted repeatedly that the Petition for Review was untimely
filed with the District Court. (See, e.g., Brief for Appellants at p. vi; AF APPX 1,
CR 8). Without citing any authority, Trombly’s only argument with regard to
timeliness is that “extenuating circumstances” excused his late filing: “the Air
Force had offered to independently settle the matter, but then failed to provide a
written settlement, delaying any timely filing.” (Brief for Appellants at p. vi; see
also Petition for Review, AF APPX 1, CR 11).
13 Numerous Texas courts have affirmed the dismissal of challenges to the
denial of unemployment compensation benefits where the district court suit is not
filed within the statutory 14-day period. See, e.g., Richardson v. Tex. Workforce
Comm’n, 2014 WL 2538621, at *2 (Tex. App.—Houston [1st Dist.] 2014 pet.
denied) (“Failure to meet the jurisdictional requirements of section 212.201
precludes a movant from seeking judicial review of a TWC decision.”) (citing, e.g.,
Prairie View A&M Univ. v. Chathra, 381 S.W.3d 500, 514-15 (Tex. 2012)); Tex.
Workforce Comm’n v. Smith, No. 14-11-00003-CV, 2011 WL 4507077, at *2 (Tex.
App.—Houston [14th Dist.] Sept. 29, 2011, no pet.)(mem. op.) (“’If the fourteen
days expire and the plaintiff has failed to file a petition for judicial review, the
Commission’s decision becomes final and unappealable.”); Hernandez v. Tex.
Workforce Comm’n, No. 01-09-01085-CV, 2011 WL 346291, at * 1 (Tex. App.
Houston— [1st Dist.] Feb. 3, 2011, no pet.)(mem. op.) (“Failure to comply with
section 212.201 deprives the trial court of jurisdiction over the suit.”).
Although Trombly has presented no case law suggesting that equitable
tolling can apply to extend his filing deadline because of the Air Force’s alleged
conduct during settlement negotiations, even assuming that the 14-day deadline
could be tolled, such an argument would fail, and has not been supported. See,
e.g., Villages of Greenbriar v. Torres, 874 S.W.2d 259, 264 (Tex. App.—Houston
[1st Dist.] 1994, writ denied) (in order to avoid limitations defense and prove a
14 claim of equitable estoppel, nonmoving party must show: 1) a false representation
or concealment of a material fact; 2) the representation was made with knowledge
or the means of knowledge of the true facts; 3) the representation was made to a
party without knowledge or the means of knowledge of the true facts; 4) the
representation was made with the intention that it would be acted upon; and 5) the
party to whom the representation was made relied upon or acted upon it to his
prejudice.); Lockard v. Deitch, 855 S.W. 2d 104, 105 (Tex. App.—Corpus Christi
1993, no writ) (“absent bad faith or fraud, settlement negotiations between a
plaintiff and defendant do not constitute a waiver of the defendant’s right to assert
the statute of limitations.”).
The District Court’s decision to dismiss Trombly’s Petition for Review for
failure to meet the 14-day deadline should therefore be affirmed.
B. Trombly’s Petition for Review Failed to Name or Serve the Texas Workforce Commission as a Necessary Party.
Texas Labor Code § 212.206 - Commission Considered Party to Judicial
Review; Notice of Petition states in pertinent part that: “(a) The commission is
considered a party to any judicial action involving a final decision of the
commission…(b)“A petition to bring an action under this subchapter must be
served on: (1) a member of the commission; or (2) a person designated by the
commission.” (AF APPX. 3). Section 212.201 (b) provides that “[e]ach other 15 party to the proceeding before the commission must be made a defendant in an
action under this subchapter.” (AF APPX. 3).
On its face, Trombly’s Petition for Review demonstrates that he did not
comply with Section 212.206 as the TWC was not named as a party, nor served as
required, according to Trombly’s own certificate of service. (See AF APPX 1, CR
05). In Hernandez, supra, the plaintiff-employee named the TWC in her appeal,
but failed to name her employer within the 14-day deadline. Although Hernandez
filed an amended petition within one month of the deadline, joining her employer
in the suit, her suit was nevertheless dismissed, and the dismissal was affirmed on
appeal because: “the statutory deadline applied to all parties to the proceeding, not
just the TWC, and therefore the trial court properly granted the TWC’s plea to the
jurisdiction. … Failure to comply with section 212.201 deprives the trial court of
jurisdiction over the suit.” 2011 WL 346291, at * 1 (citation omitted). This rule
applies with even greater force in this case because Trombly has never attempted
to join or serve the TWC as a necessary party. See also Stoker v. Tex. Workforce
Comm’n, 402 S.W.3d 926, 929-930 (Tex. App.—Dallas 2013, no pet.) (“[T]he
fourteen-day filing deadline for a plaintiff to file suit under section 212.201 of the
labor code is a jurisdictional prerequisite. … Stoker’s petition failed to vest the
trial court with jurisdiction … because it did not name all the necessary defendants
[it named the TWC, but not her employer] within the limitations period.”).
16 The 198th Court was therefore correct in dismissing the case for Trombly’s
failure to comply with the Texas Labor Code, and the decision should be affirmed.
PRAYER
Trombly has waived all possible issues on appeal, and has not presented
grounds for reversal of the trial court’s decision. Therefore, the appeal should be
dismissed for want of prosecution, or alternatively, the judgment of the trial court
should be affirmed.
Respectfully submitted,
DATED: February 4, 2015 By: /s/Robert Shaw-Meadow ROBERT SHAW-MEADOW Assistant United States Attorney Texas Bar No. 18162475 601 N.W. Loop 410, Suite 600 San Antonio, Texas 78216 Telephone: (210) 384-7355 Facsimile: (210) 384-7312 Rob.shaw-meadow@usdoj.gov ATTORNEYS FOR APPELLEES
17 CERTIFICATE OF SERVICE
The undersigned certifies that a true a correct copy of the Air Force’s Brief has been served on the following via certified mail, return receipt requested on this the 4th day of February, 2015.
Jeremiah Trombly 366 Luther Lane Pipe Creek, Texas 78063
By: /s/Robert Shaw-Meadow ROBERT SHAW-MEADOW
CERTIFICATE OF COMPLIANCE
I hereby certify that the word count in Appellee’s Brief is 4,595 words.
/s/Robert Shaw-Meadow ROBERT SHAW-MEADOW
18 APPENDIX TO APPELLEE’S BRIEF APPENDIX TABLE OF CONTENTS NO
Clerk’s Record (CR pp)..……..…..………..………….………………… 1
Clerk’s 1st Supplemental Record (SCR pp) .……………....………...… 2
Tex.Lab.Code §§ 212.201 and 212.206 ………………………………… 3
Order of November 25, 2014 ..…………………………………………..4
Clerk’s letter dated December 29, 2014…………………………………5 APPENDIX 1
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 10/24/2014 2:57:21 PM KEITH E. HOTTLE Clerk
CR 001 CR 002 CR 003 CR 004 CR 005 CR 006 CR 007 CR 008 CR 009 CR 010 CR 011 CR 012 CR 013 CR 014 CR 015 CR 016 CR 017 CR 018 APPENDIX 2
FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 11/3/2014 5:27:07 PM KEITH E. HOTTLE Clerk
1 SCR 001 2 SCR 002 3 SCR 003 4 SCR 004 5 SCR 005 6 SCR 006 7 SCR 007 § 212.201. Commencement of Judicial Review; Defendants, TX LABOR § 212.201 APPENDIX 3
Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 4. Employment Services and Unemployment Subtitle A. Texas Unemployment Compensation Act Chapter 212. Dispute Resolution Subchapter E. Judicial Review of Commission Decision
V.T.C.A., Labor Code § 212.201
§ 212.201. Commencement of Judicial Review; Defendants
Currentness
(a) A party aggrieved by a final decision of the commission may obtain judicial review of the decision by bringing an action in a court of competent jurisdiction for review of the decision against the commission on or after the date on which the decision is final, and not later than the 14th day after that date.
(b) Each other party to the proceeding before the commission must be made a defendant in an action under this subchapter.
Credits Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Notes of Decisions (40)
V. T. C. A., Labor Code § 212.201, TX LABOR § 212.201 Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 212.206. Commission Considered Party to Judicial Review;..., TX LABOR § 212.206
Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 4. Employment Services and Unemployment Subtitle A. Texas Unemployment Compensation Act Chapter 212. Dispute Resolution Subchapter E. Judicial Review of Commission Decision
V.T.C.A., Labor Code § 212.206
§ 212.206. Commission Considered Party to Judicial Review; Notice of Petition
(a) The commission is considered a party to any judicial action involving a final decision of the commission.
(b) A petition to bring an action under this subchapter must be served on:
(1) a member of the commission; or
(2) a person designated by the commission.
(c) As many copies of the petition as there are defendants must be left with the party served under Subsection (b). The commission immediately shall mail one copy of the petition to each defendant.
(d) Service in compliance with this section constitutes completed service on all defendants.
Credits Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Editors' Notes
REVISOR'S NOTE
2006 Main Volume
The source law provides that service of a petition on a member of the Texas Employment Commission or a person designated by the commission constitutes completed service on all “parties.” The revised law substitutes “defendants” for the source law term “parties” because under Section 212.201 (formerly part of V.A.C.S. Article 5221b-4(i)), all parties to a proceeding before the commission, other than the party aggrieved by the commission's decision, are defendants in an action for judicial review.
Notes of Decisions (1)
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 212.206. Commission Considered Party to Judicial Review;..., TX LABOR § 212.206
V. T. C. A., Labor Code § 212.206, TX LABOR § 212.206 Current through the end of the 2013 Third Called Session of the 83rd Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Department of the Air
APPENDIX 4
Fourth Court of Appeals San Antonio, Texas November 25, 2014
No. 04-14-00729-CV
Jeremiah TOMBLY, Appellant
v.
DEPARTMENT OF THE AIR FORCE, Appellee
From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CV-14-0000304 Honorable M. Rex Emerson, Judge Presiding
ORDER
Appellant filed his brief on November 24, 2014. The brief does not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. Specifically, the brief violates Texas Rule of Appellate Procedure 38 in that it does not contain:
(1) an identity of parties and counsel; (2) a table of contents; (3) an index of authorities; (4) a statement of the case; (5) a brief statement of the issues presented, setting out what errors were allegedly committed by the trial court; (6) include a statement of facts with record references; (7) a summary of the argument; (8) argument with appropriate citation to authorities and the appellate record; (9) a prayer for relief; or (10) an appendix.
See id. R. 38.1(a) (requiring identity of parties and counsel), (b) (requiring table of contents), 38.1(c) (requiring index of authorities), 38.1(d) (requiring statement of case); 38.1(f) (requiring statement of issues presented), 38.1(g) (requiring statement of facts with record reference), 38.1(h) (requiring requiring summary of argument, 38.1(i) (requiring argument with appropriate citation to authority and record), 38.1(j) (requiring prayer for relief); and 38.1(k) (requiring appendix with copy of judgment or other appealable order, any jury charge and verdict form, any findings of fact and conclusions of law, and text of applicable rules, regulations, ordinances, statutes, constitutional provisions, or other law on which argument is based, or any contract or other document central to argument).
Additionally, appellant failed to: (1) sign the brief; (2) provide his mailing address; (3) provide his telephone number; (4) provide his fax number, if any; and (5) provide an email address. See id. R. 9.1(b). The front cover of the brief does not include all of the information required by Rule 9.4(g). See id. R. 9.4(g) (requiring front cover of filed document to contain case style, case number, title of document, name of party filing document, name and mailing address, telephone number, fax number, if any, and email of party). The brief also fails to include the certificate of service, showing proof of service on the opposing party or its counsel. See TEX. R. APP. P. 9.5(d), (e). Moreover, we cannot discern from appellant’s brief the nature of the action, the relief granted or denied below, nor the exact nature of the complaints appellant is asserting on appeal.
Although substantial compliance with Rule 38.1 is generally sufficient, this court may order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38.1. See id. R. 38.9(a). We conclude that the formal defects described above constitute flagrant violations of Rule 38.1. Accordingly, we ORDER appellant’s brief stricken and ORDER appellant to file an amended brief in this court on or before December 29, 2014. The amended brief must correct the violations listed above and fully comply with the applicable rules. See, e.g., id. R. 9.4, 9.5, 38.1. If the amended brief does not comply with this order, we “may strike the brief, prohibit [appellant] from filing another, and proceed as if [appellant] had failed to file a brief.” See id. R. 38.9(a); see also id. R. 38.8(a) (authorizing this court to dismiss appeal if appellant fails to timely file brief). Even if we do not strike the brief and prohibit appellant from filing another brief, we may find that any issues raised by appellant are waived due to inadequate briefing, and overrule those issues. See, e.g., Marin Real Estate Partners v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.). We recognize that appellant represents himself on appeal, i.e., he is acting pro se. However, the law is clear that pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable rules of procedure, including the rules governing appellate briefs. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). A pro se litigant is required to properly present her case on appeal just as she is required to properly present her case to the trial court. Id. Accordingly, we will not apply different standards merely because an appeal is brought by a litigant acting without advice of counsel. Id. If appellant timely files a brief that complies with this order, appellee’s brief will be due thirty days after appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).
_________________________________ Marialyn Barnard, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 25th day of November, 2014.
___________________________________ Keith E. Hottle Clerk of Court FILE COPY
APPENDIX 5
COURT OF APPEALS CATHERINE STONE FOURTH COURT OF APPEALS DISTRICT KEITH E. HOTTLE CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT KAREN ANGELINI 300 DOLOROSA, SUITE 3200 SANDEE BRYAN MARION SAN ANTONIO, TEXAS 78205-3037 MARIALYN BARNARD WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE REBECA C. MARTINEZ (210) 335-2635 PATRICIA O. ALVAREZ LUZ ELENA D. CHAPA FACSIMILE NO. JUSTICES (210) 335-2762
December 29, 2014
Jeremiah Tombly Richard Johnson 366 Luther Lane HQ AFPC/DPIEPC USFE Pipe Creek, TX 78063 JBSA Randolph, TX 78150 * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 04-14-00729-CV Trial Court Case Number: CV-14-0000304 Style: Jeremiah Tombly v. Department of the Air Force
The brief of the appellant Jeremiah Tombly does not comply in numerous respects with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. Specifically, the brief violates Texas Rule of Appellate Procedure 38 in that it does not contain: (1) an identity of parties and counsel; (2) a table of contents; (3) an index of authorities; (4) a statement of the case; (5) a brief statement of the issues presented, setting out what errors were allegedly committed by the trial court; (6) include a statement of facts with record references; (7) a summary of the argument; (8) argument with appropriate citation to authorities and the appellate record; (9) a prayer for relief; or (10) an appendix. See id. R. 38.1(a) (requiring identity of parties and counsel), (b) (requiring table of contents), 38.1(c) (requiring index of authorities), 38.1(d) (requiring statement of case); 38.1(f) (requiring statement of issues presented), 38.1(g) (requiring statement of facts with record reference), 38.1(h) (requiring summary of argument, 38.1(i) (requiring argument with appropriate citation to authority and record), 38.1(j) (requiring prayer for relief); and 38.1(k) (requiring appendix with copy of judgment or other appealable order, any jury charge and verdict form, any findings of fact and conclusions of law, and text of applicable rules, regulations, ordinances, statutes, constitutional provisions, or other law on which argument is based, or any contract or other document central to argument).
Additionally, appellant failed to: (1) sign the brief; (2) provide his mailing address; (3) provide his telephone number; (4) provide his fax number, if any; and (5) provide an email address. See id. R. 9.1(b). The front cover of the brief does not include all of the information FILE COPY
required by Rule 9.4(g). See id. R. 9.4(g) (requiring front cover of filed document to contain case style, case number, title of document, name of party filing document, name and mailing address, telephone number, fax number, if any, and email of party). The brief also fails to include the certificate of service, showing proof of service on the opposing party or its counsel. See TEX. R. APP. P. 9.5(d), (e). Moreover, we cannot discern from appellant’s brief the nature of the action, the relief granted or denied below, nor the exact nature of the complaints appellant is asserting on appeal.
This Court previously struck appellant’s original brief and rendered an order pointing out the deficiencies and requiring appellant to file an amended brief. The amended brief in no way corrected the deficiencies previously noted by this Court. However, the Court is not ordering appellant to rebrief. However, appellant should be advised that this court may consider his appellate complaints waived due to inadequate briefing if the noted deficiencies are not corrected prior to submission. See, e.g., Lott v. First Bank, No. 04-13-00531-CV, 2014 WL 4922896, at *2 (Tex. App.—San Antonio Oct. 1, 2014, no pet.); Castillo v. Peoples, No. 04-13-00311-CV, 2014 WL 1089750, at *3 (Tex. App.—San Antonio Mar. 19, 2014, pet. denied). Moreover, please be advised that further filings must comply with the Texas Rules of Appellate Procedure — specifically the rules regarding service on all parties.
Very truly yours, KEITH E. HOTTLE, CLERK
_____________________________ Jennifer Saenz Deputy Clerk, Ext. 53221
cc: The Honorable M. Rex Emerson Tammy Kneuper (DELIVERED VIA E-MAIL)