Opinion issued November 7, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00622-CV NO. 01-22-00852-CV ——————————— JUAN ENRIQUEZ, Appellant V. AHMED A. MORSY, M.D., Appellee
On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 18-CV-0884
MEMORANDUM OPINION
This case involves two related appeals arising from the same trial court cause
number. In the first appeal,1 appellant, Juan Enriquez, challenges the trial court’s
1 Appellate cause no. 01-22-00622-CV (the “sealing-order appeal”). sealing order in his suit against appellee, Ahmed A. Morsy, M.D., for violations of
the Eighth Amendment and 42 U.S.C. § 1983 and equitable relief under the Texas
Constitution.2 In three issues, Enriquez contends that the trial court erred in ordering
certain evidence be filed under seal.
In the second appeal,3 Enriquez challenges the trial court’s order granting the
plea to the jurisdiction of Dr. Morsy. In four issues, Enriquez contends that the trial
court erred in granting Dr. Morsy’s plea to the jurisdiction and dismissing his claims
with prejudice.
We affirm.
Background4
In his petition, Enriquez alleged that he, at the time he filed suit, was a
prisoner5 housed in the Michael Unit operated by the Texas Department of Criminal
2 See TEX. R. CIV. P. 76a(8); see also Kallergis v. Brupbacher, No. 14-19-00470-CV, 2021 WL 506081, at *2 (Tex. App.—Houston [14th Dist.] Feb. 11, 2021, no pet.) (mem. op.) (noting Texas Rule of Civil Procedure 76a contains “expansive language . . . [in] authorizing appeals”). 3 Appellate cause no. 01-22-00852-CV (the “plea-to-the-jurisdiction appeal”). 4 This is not our first appeal involving these parties. See Enriquez v. Morsy, No. 01-18-00877-CV, 2020 WL 4758428 (Tex. App.—Houston [1st Dist.] Aug. 18, 2020, no pet.) (mem. op.). 5 On April 25, 1966, Enriquez “shot to death his girlfriend, her father, her brother, a woman he abducted, and a Texas Highway Patrolman.” Enriquez v. Procunier, 752 F.2d 111, 113 (5th Cir. 1984) (federal habeas proceeding). On October 19, 1966, a jury convicted him of the offense of capital murder of the woman he abducted, and it assessed his punishment at death. Id.; see also Enriquez v. State, 429 S.W.2d 141, 142–45 (Tex. Crim. App. 1968) (affirming Enriquez’s conviction); Enriquez v. Hurley, No. 03-10-00017-CV, 2010 WL 3271962, at *1 n.1 (Tex. App.—Austin 2 Justice-Correctional Institutions Division (“TDCJ-CID”) in Tennessee Colony,
Texas.6 According to Enriquez, Dr. Morsy handled “the medical care and treatment
of prisoners admitted to” the University of Texas Medical Branch at Galveston
(“UTMB”).
Enriquez alleged that in November 2014, he reported to prison infirmary staff
that he was sick; he had lost his appetite and his food had a metallic taste. He
reported that he was “seeing lights and black holes,” had chills, and could barely
walk. On December 4, 2014, Enriquez purportedly passed out in his cell. On
December 10, 2014, Enriquez was seen by a nurse for high blood pressure, shaking,
and diabetes. The nurse “referred [him] to a provider.” On December 16, 2014,
although Enriquez was scheduled to see a provider, he did not see one that day.
Enriquez then sought help from Eddie Baker, the Senior Warden of the Michael
Aug. 20, 2010, pet. denied) (mem. op.). That sentence was later commuted to life imprisonment. Procunier, 752 F.2d at 113; Hurley, 2010 WL 3271962, at *1 n.1 (“Enriquez’s death sentence was commuted to life imprisonment after the statutory scheme under which his capital punishment was imposed was declared unconstitutional under the 1972 Furman v. Georgia decision.”). In four other proceedings, Enriquez “pleaded guilty to murder and received three concurrent 99-year sentences and one 25-year sentence.” Procunier, 752 F.2d at 113. 6 The Michael Unit is in Anderson County, Texas. See Enriquez v. Orihuela, No. 14-18-00147-CV, 2019 WL 6872946, at *1 & n.2 (Tex. App.—Houston [14th Dist.] Dec. 17, 2019, pet. denied) (mem. op.); Butts Retail, Inc. v. Diversifoods, Inc., 840 S.W.2d 770, 774 (Tex. App.—Beaumont 1992, writ denied) (“The Court may take judicial notice of the location of cities, counties, boundaries, dimensions, and distances because geographical facts such as these are easily ascertainable and capable of verifiable certainty.”). In his briefs, Enriquez noted that he was now housed in the Pack Unit operated by TDCJ-CID and located in Navasota, Texas.
3 Unit, “to help him get examined by a provider,” but Baker did not do anything.
When Enriquez returned to his living area that day, he was sent to the infirmary “due
to his sickly appearance,” but he was not treated by infirmary personnel. On
December 23, 2014, a prison doctor examined Enriquez and requested an expedited
transfer to John Sealy Hospital—a hospital associated with UTMB—for a cancer
pathology evaluation. However, Baker did not transfer Enriquez, and prison
employees refused to transport him to John Sealy Hospital.
Enriquez further alleged that in January 2015, a nurse practitioner diagnosed
him with acute kidney failure and referred Enriquez to John Sealy Hospital. On
January 14, 2015, Enriquez was examined at John Sealy Hospital by a hospital
resident for prostate and kidney issues. Enriquez was admitted to the hospital and
diagnosed with acute kidney failure and benign prostatic hyperplasia.
On January 15, 2015, Dr. Morsy was assigned to be the attending physician
for Enriquez. As to Enriquez’s acute kidney failure, Enriquez alleged that Dr. Morsy
did not inform him “of the extent of [his] kidney damage []or that [he] could die if
his kidneys continued to fail.” And Dr. Morsy did not address the damage to
Enriquez’s kidneys or treat Enriquez’s kidney failure; instead, he approved
Enriquez’s discharge from the hospital on January 21, 2015, listing his condition as
“fair.” According to Enriquez,
[Dr. Morsy’s] failure or refusal to treat [Enriquez’s] kidney failure evince[d] a culpable state of mind, an awareness of facts from which 4 the inference c[ould] be drawn that a substantial risk of serious harm to [Enriquez] existed, and a disregard for an excessive risk to [Enriquez’s] health and life, which action or inaction resulted in further significant injury to [Enriquez] and in the unnecessary and wanton infliction of pain.
Enriquez alleged that Dr. Morsy was deliberately indifferent to Enriquez’s serious
medical need, and as a result, Enriquez continued to suffer kidney damage and his
life was placed at risk.
As to Enriquez’s benign prostatic hyperplasia, Enriquez alleged that on
January 17, 2015, a supervising surgeon informed him that she would perform a
procedure to correct his inability to urinate. But Dr. Morsy did not tell Enriquez, or
explain to him, that the procedure would not ultimately be performed. And although
Dr. Morsy knew that Enriquez had been diagnosed with benign prostatic hyperplasia
and that the supervising surgeon felt that a surgical procedure needed to be
performed, Dr. Morsy failed to or refused to provide Enriquez with the procedure
necessary to correct his benign prostatic hyperplasia and address Enriquez’s inability
to urinate. Instead, Dr. Morsy discharged him from the hospital on January 21, 2015.
Enriquez alleged,
[Dr. Morsy’s] failure or refusal to correct [his benign prostatic hyperplasia] evince[d] a culpable state of mind, an awareness of facts from which the inference c[ould] be drawn that a substantial risk of serious harm to [Enriquez] existed, and a disregard for an excessive risk to [Enriquez’s] health and life, which action or inaction resulted in further significant injury to [Enriquez] and the unnecessary and wanton infliction of pain.
5 On March 6, 2015, another nurse practitioner examined Enriquez and
diagnosed him with “anemia due to kidney damage.” Although Enriquez continued
to complain of “kidney failure symptoms,” nothing was done to treat his anemia.
On May 28, 2015, Enriquez was examined at John Sealy Hospital by a
hospital resident. Enriquez asked the resident to address and treat the issues with his
kidneys, including his anemia. But the resident only addressed matters related to
Enriquez’s benign prostatic hyperplasia. According to Enriquez, while at the
hospital, Dr. Eduardo Orihuela saw and examined Enriquez and “actively
participated in the decision-making process.” And Dr. Orihuela refused to comply
with Enriquez’s request for treatment related to his anemia and acute kidney failure.
On June 8, 2015, Enriquez was again seen by the nurse practitioner who noted his
anemia and ordered blood tests, but his anemia remained untreated and unaddressed.
Later in 2015, despite repeated requests to be treated for kidney and catheter
issues, including a urinary tract infection (“UTI”), and to get the results of his
previous blood tests, Enriquez did not see a provider for several months. On August
28, 2015, Enriquez was seen by Dr. Thomas Williams who ordered additional testing
related to Enriquez’s UTI, referred Enriquez for a “TURK procedure” to correct his
benign prostatic hyperplasia, and scheduled Enriquez for an appointment to treat his
UTI. Prison employees did not produce Enriquez for that appointment. On
September 10, 2015, Enriquez was seen by Dr. Gary Wright who ordered new blood
6 tests and scheduled Enriquez for a follow-up appointment. On October 7, 2015,
prison employees did not produce Enriquez for his appointment. Because
Enriquez’s UTI became “so severe,” on October 21, 2015, he was transported to
Palestine Regional Medical Center and diagnosed with an epididymis infection.
In February 2016, Enriquez’s epididymis infection returned, but prison nurses
refused to examine him. On February 22, 2016, Enriquez was transported to the
prison infirmary on a gurney, examined, and treated with antibiotics for ten days.
The antibiotics were not effective, and on March 7, 2016, a nurse practitioner
examined Enriquez and ordered antibiotic shots and oral antibiotics. But the nurse
scheduled to administer the shots told Enriquez that they were no longer available,
and the oral antibiotics did not resolve Enriquez’s infection for thirty days. During
those thirty days, Enriquez continued to suffer chills, fever, loss of appetite, loss of
energy, and extreme pain.
According to Enriquez, Dr. Lannellee Linthicum, the Director of Medical
Services for TDCJ-CID, had a policy and practice of allowing prisoners’ serious
medical needs to go unattended, undiagnosed, and untreated as dictated by prison
policies promulgated and implemented by Dale Wainwright, the chairman of the
Texas Board of Criminal Justice (“TBCJ”), Brad Livingston, the executive director
of the TDCJ, and Baker. And in the Michael Unit, operated by TDCJ-CID, the
providers did not have the necessary medication, testing capability, or supplies to
7 treat the serious medical needs of prisoners. Such circumstances caused Enriquez
to develop chronic UTIs and led to the providers’ failures to detect Enriquez’s acute
kidney failure and infections. And Enriquez was denied treatment for his serious
medical needs.
Enriquez brought claims against Dr. Morsy7 for violations of the Eighth
Amendment and 42 U.S.C. § 19838 based on his “deliberate indifference to serious
medical need of treatment for acute kidney failure,” “deliberate indifference to
serious medical need to correct benign prostatic hyperplasia,” and “deliberate
indifference to serious medical need for treatment of [UTIs].” Enriquez also alleged
a negligence claim against Dr. Morsy and sought exemplary damages resulting from
Dr. Morsy’s “gross negligence, malice, or fraud.” Enriquez further sought equitable
relief under the Texas Constitution, and in his prayer for relief, he requested a writ
7 Enriquez brought claims against other defendants as well. But they are no longer parties to this case. See Morsy, 2020 WL 4758428, at *1–5. 8 See U.S. CONST. amend. VIII; 42 U.S.C. § 1983. 42 U.S.C. § 1983 provides a remedy when any “person” acting under color of state law deprives another of rights, privileges, or immunities protected by the United States Constitution or laws. Thomas v. Collins, 960 S.W.2d 106, 109 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). Enriquez, in his petition, referenced the Eighth Amendment and 42 U.S.C. § 1983 and cited a case involving the Eighth Amendment and § 1983 claims. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (deliberate indifference to serious medical needs constitutes unnecessary and wanton infliction of pain proscribed by Eighth Amendment and deliberate indifference to prisoner’s serious illness or injury states cause of action under § 1983); see also Williams v. Casal, No. 08-03-00396-CV, 2004 WL 1932649, at *3 (Tex. App.—El Paso Aug. 31, 2004, no pet.) (mem. op.) (construing pro se prisoner’s petition liberally in determining he had raised claim for violations of Eighth Amendment and 42 U.S.C. § 1983).
8 of mandamus “directing [Dr. Morsy] to provide [him] with either transurethral
microwave thermotherapy or transurethral needle ablation,” performed by a doctor
not connected with TDCJ or UTMB, to correct his benign prostatic hyperplasia; a
writ of mandamus “directing [Dr. Morsy] to provide [him] with a comprehensive
evaluation of the damage to his kidneys and the treatment necessary to repair or
restore them,” performed by a doctor not connected to TDCJ or UTMB; a writ of
mandamus “directing [Dr. Morsy] to provide [him] with the treatment necessary to
correct or cure [his] anemia,” performed by a doctor not connected to TDCJ or
UTMB; “[p]rospective equitable relief”; actual, exemplary, and nominal damages;
pre- and post-judgment interest; and any other relief in equity or law.
Dr. Morsy answered, generally denying the allegations in Enriquez’s petition.
Dr. Morsy then moved to dismiss Enriquez’s claims against him under the Texas
Tort Claims Act (“TTCA”) and Texas Civil Practice & Remedies Code chapter 14.
In response to Dr. Morsy’s motion to dismiss, Enriquez argued that his claims
against Dr. Morsy were not subject to dismissal under the TTCA because he had
“sued [Dr.] Morsy under Title 42 U.S.C., Section 1983, for damages due to
violation[s] of [his] Eighth Amendment right to be free from cruel and unusual
punishment” as well as “Article 1, Section 19, of the Texas Constitution for equitable
relief due to violation[s] of his rights under the Texas Bill of Rights.” In other words,
9 Enriquez asserted that he had not brought “tort claims” against Dr. Morsy, and, as
such, the TTCA did not apply.9
After Dr. Morsy filed a reply to Enriquez’s response, the trial court, without
specifying the grounds, signed an order granting Dr. Morsy’s motion to dismiss and
dismissing Enriquez’s suit, in its entirety, against Dr. Morsy.
On appeal, this Court affirmed the portion of the trial court’s order dismissing
Enriquez’s tort claims against Dr. Morsy.10 But we reversed the portion of the trial
court’s order dismissing Enriquez’s claims against Dr. Morsy for violations of the
Eighth Amendment and 42 U.S.C. § 1983 based on the “deliberate indifference to
serious medical need” and for equitable relief under the Texas Constitution.11 We
remanded the case to the trial court for further proceedings consistent with our
opinion.12
Following remand, Dr. Morsy filed a plea to the jurisdiction, motion for
summary judgment, and motion to dismiss related to Enriquez’s remaining claims
for violations of the Eighth Amendment and 42 U.S.C. § 1983 based on the
“deliberate indifference to serious medical need” and for equitable relief under the
9 Enriquez also asserted that his claims against Dr. Morsy should not be dismissed under Texas Civil Practice and Remedies Code chapter 14. 10 See Morsy, 2020 WL 4758428, at *11–17. 11 See id. (expressing no opinion on the merits of Enriquez’s remaining claims). 12 See id. at *17.
10 Texas Constitution.13 In connection with his motion, Dr. Morsy filed a motion for
leave to file certain evidence supporting his motion under seal, asserting that
Enriquez’s claims arose from his medical treatment at UTMB and Dr. Morsy was a
physician involved with Enriquez’s medical treatment. Dr. Morsy requested that he
be permitted to file certain evidence under seal so that he did not violate the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”).14
Enriquez opposed Dr. Morsy’s motion for leave to file certain evidence under
seal because, according to Enriquez, the “motion or request [was] pre[mature],” the
“request [was] overbroad,” and there was “no reason to seal at th[e] time.”
The trial court held a hearing on Dr. Morsy’s motion for leave to file certain
evidence under seal. When asked by the trial court whether he was opposed to the
trial court granting the motion, Enriquez responded, “At this time, I am. I just don’t
see a need for it right now.” Enriquez further stated that he was “just opposed.” The
trial court granted Dr. Morsy’s motion, allowing him to file under seal certain
13 After Dr. Morsy filed his plea to the jurisdiction, motion for summary judgment, and motion to dismiss, Enriquez filed a “supplement” to his petition to “provid[e] a more definite statement of the claims against [Dr.] Morsy.” Dr. Morsy then filed a supplemental plea to the jurisdiction and supplemental motion for summary judgment to address Enriquez’s supplemental filing. 14 Generally, HIPAA prohibits a health care provider from disclosing a patient’s protected health information. See Daywalker v. Univ. of Tex. Med. Branch at Galveston, Civil Action No. 3:20-cv-00099, 2021 WL 4099827, at *2 (S.D. Tex. Sept. 9, 2021) (op. and order); see also 45 C.F.R. § 164.502.
11 evidence to support his plea to the jurisdiction, motion for summary judgment, and
motion to dismiss.
As to his plea to the jurisdiction, motion for summary judgment, and motion
to dismiss, Dr. Morsy stated that he was filing a plea to the jurisdiction related to
Enriquez’s claims against him for equitable relief under the Texas Constitution and
Enriquez’s request for a writ of mandamus because the trial court lacked
subject-matter jurisdiction. He also moved for summary judgment on Enriquez’s
claims against him—claims for violations of the Eighth Amendment and 42 U.S.C.
§ 1983 based on the “deliberate indifference to serious medical need,” for equitable
relief under the Texas Constitution, and for the requested writ of mandamus—
asserting that he was entitled to judgment as a matter of law on Enriquez’s claims
and no evidence existed “of one or more essential elements” of Enriquez’s claims
for violations of the Eighth Amendment and 42 U.S.C. § 1983. And Dr. Morsy
moved to dismiss Enriquez’s claims against him for failure to comply with Texas
Civil Practice and Remedies Code chapter 74’s medical expert requirements,
explaining that Enriquez had alleged claims against Dr. Morsy, a physician, related
to Enriquez’s “treatment, lack of treatment, or [an] alleged departure from accepted
standards of medical care that he [asserted] resulted in injury and damages.”
Because Enriquez’s claims against Dr. Morsy constituted health care liability claims,
he was required to serve Dr. Morsy with an expert report and curriculum vitae, which
12 he had not done, and this meant that the trial court had to dismiss Enriquez’s claims
against Dr. Morsy with prejudice. Dr. Morsy requested that the trial court grant his
plea to the jurisdiction, motion for summary judgment, and motion to dismiss. Dr.
Morsy filed under seal certain evidence in support of his plea to the jurisdiction,
motion for summary judgment, and motion to dismiss.15
Following Dr. Morsy’s filing of his plea to the jurisdiction, motion for
summary judgment, and motion to dismiss, Enriquez filed a “Supplement to his
Original Complaint Providing a More Definite Statement of the Claims Against [Dr.]
Morsy.” Related to UTMB, Enriquez alleged that on January 14, 2015, he was
examined at UTMB by Dr. Daniel Bellow, who “determined [that his] prostate gland
was not cancerous but enlarged.” Enriquez was admitted to UTMB and diagnosed
with acute kidney injury and benign prostatic hyperplasia. On January 15, 2015, “a
renal ultra[sound]” showed damage to Enriquez’s kidneys. Also, on January 15,
2015, Enriquez was “seen by a panel of doctors,” the head of which told Enriquez
that he did not have prostate cancer, but he had “an enlarged prostate gland which
caused his kidneys to fail due to urine back-up.” Enriquez was told that “an
15 Although Enriquez complains that certain evidence was filed under seal in the trial court, when he believes it should not have been, we do not directly discuss this sealed evidence in this memorandum opinion because it is not necessary for our disposition. See generally Hunter v. Marshall, No. 01-16-00636-CV, 2018 WL 6684840, at *1 n.4 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, no pet.) (mem. op.) (discussing reasoning for vague record references where trial court has signed sealing order).
13 attending physician would be assigned to [him]” and that physician would be
responsible for his treatment. On January 16, 2015, Dr. Robyn Crowell visited
Enriquez and told him that she would perform a procedure to “correct his inability
to urinate.”
As to Dr. Morsy, Enriquez alleged that on January 17, 2015, Dr. Morsy was
assigned as the attending physician for Enriquez. According to Enriquez, Dr. Morsy
knew that Enriquez’s kidneys had failed and “remained in a failed state.” And that
Enriquez’s kidneys had been “seriously damaged,” and he was in pain. Although
Enriquez told Dr. Morsy that he “wanted a full evaluation of his kidneys
and . . . whatever treatment was available for failed kidneys,” Dr. Morsy “refused to
treat [Enriquez’s] kidney failure and refused to order a complete evaluation of [his]
kidneys.” Dr. Morsy told Enriquez that “he was not a nephrologist and could not
treat kidneys and . . . he could not order an evaluation of [Enriquez’s] kidneys
because [Enriquez] had been admitted under a diagnosis of acute kidney injury and
not a diagnosis of [a]cute [k]idney [f]ailure.” And UTMB had a policy “to treat only
diagnosed admissions . . . with prisoner patients.” Further, although Enriquez told
Dr. Morsy that “he did not want to be discharged from the hospital until his kidneys
were treated and until he had a full examination of his kidneys and was given a
prognosis of what he could expect from his medical problems,” Dr. Morsy stated
that “he could not do that with a prisoner patient.” Dr. Morsy told Enriquez that “he
14 realized the seriousness of [Enriquez’s] kidney failure and that he also realized that
it could be fatal but that he could do nothing for [Enriquez] . . . except discharge him
to a medical unit.” According to Enriquez, on January 21, 2015,
[Dr. Morsy] discharged [Enriquez] from UTMB[] without treating or addressing [his] serious medical need [for] treatment for [a]cute [k]idney [f]ailure, without ordering an evaluation of [his] kidneys, without waiting until [his] kidneys reached a non-failed state, and without referring [his] case to a nephrologist who might have been willing to treat [his] kidney failure.
And this caused Enriquez “subsequent pain and suffering,” further damage to his
kidneys, anemia, UTIs, and was a risk to Enriquez’s “health and life.” Enriquez
alleged that Dr. Morsy was “deliberately indifferent to [his] serious diagnosed
medical needs.”
In response to Enriquez’s “Supplement to his Original Complaint Providing a
More Definite Statement of the Claims Against [Dr.] Morsy,” Dr. Morsy filed a
supplement to his plea to jurisdiction and motion for summary judgment, asserting
that in addition to the grounds raised in his plea to the jurisdiction, motion for
summary judgment, and motion to dismiss, he was entitled to dismissal of
Enriquez’s claims based on his plea to the jurisdiction because the trial court lacked
subject matter jurisdiction as Enriquez had failed to comply with the applicable
statute of limitations. And Dr. Morsy argued that the was entitled to judgment as a
matter of law on Enriquez’s claims against him because Enriquez sued Dr. Morsy
based on medical treatment that ended on January 21, 2015 and “did not serve Dr. 15 Morsy until several months after the applicable statute [of limitations period] had
run.” Dr. Morsy attached certain exhibits to his supplement, some of which were
filed under seal.
Enriquez filed a response to Dr. Morsy’s plea to jurisdiction, motion for
summary judgment, and motion to dismiss and a response to Dr. Morsy’s
supplement to his plea to the jurisdiction and motion for summary judgment.
Following a hearing, the trial court signed an order granting Dr. Morsy’s plea
to the jurisdiction and dismissing Enriquez’s claim against Dr. Morsy for equitable
relief under the Texas Constitution and Enriquez’s request for a writ of mandamus
for lack of jurisdiction. The trial court, in its order, also granted Dr. Morsy summary
judgment on all of Enriquez’s claims against him and ordered that Enriquez take
nothing on his claims against Dr. Morsy. Finally, the trial court granted Dr. Morsy’s
motion to dismiss all of Enriquez’s claims against him based on Enriquez’s failure
to comply with Texas Civil Practice and Remedies Code chapter 74.
Sealing-Order Appeal16
In his first and second issues, Enriquez argues that the trial court erred in
granting Dr. Morsy’s motion for leave to file certain evidence under seal because
Dr. Morsy “did not provide public notice” as required by Texas Rule of Civil
16 Appellate cause no. 01-22-00622-CV.
16 Procedure 76a and Dr. Morsy “did not provide the grounds or the evidence required
for a court to grant a motion to seal records.”17
Notably, to preserve a complaint for appellate review, Texas Rule of
Appellate Procedure 33.1 requires a party to first make a complaint to the trial court
by “a timely request, objection, or motion.” TEX. R. APP. P. 33.1(a)(1); see also
Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex. App.—Houston [1st Dist.] 1996, no
writ) (because party never complained to the trial court, he never gave trial court
opportunity to correct alleged error). If a party fails to do this, error is not preserved,
and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991);
see also Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 21 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied) (“Rule 33.1 requires the appealing party to
adequately raise issues before the trial court to give the trial court notice of [the
party’s] complaint.”). An objection stating one legal basis may not be used to
17 In his third issue, Enriquez argues that the trial court erred in granting Dr. Morsy’s motion for leave to file certain evidence under seal because the trial court’s sealing order did not meet the requirements of Texas Rule of Civil Procedure 76a. Although this issue is raised in the “Issues Presented” section of Enriquez’s brief, Enriquez provides no substantive analysis or citation to appropriate authority to support his assertion. See TEX. R. APP. P. 38.1(i) (“[Appellant’s] brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”). The failure to provide substantive analysis of an issue or cite appropriate authority waives a complaint on appeal. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). Thus, we hold that Enriquez has waived his third issue due to inadequate briefing.
17 support a different legal theory on appeal. See McKee v. McNeir, 151 S.W.3d 268,
270 (Tex. App.—Amarillo 2004, no pet.) (holding appellant waived complaint
because issue on appeal did not comport with argument made in trial court).
On appeal, Enriquez argues that the trial court should not have granted Dr.
Morsy’s motion for leave to file certain evidence under seal because Dr. Morsy “did
not provide public notice” as required by Texas Rule of Civil Procedure 76a and Dr.
Morsy “did not provide the grounds or the evidence required for a court to grant a
motion to seal records.” But appellant did not raise either of these arguments in the
trial court. In his response to Dr. Morsy’s motion for leave, appellant argued that
the trial court should not grant the motion because the “motion or request [was]
pre[mature],” the “request [was] overbroad,” and there was “no reason to seal at th[e]
time.” And at the hearing on Dr. Morsy’s motion for leave, Enriquez simply told
the trial court that he “just opposed” the sealing of the records. A party’s complaint
that the trial court did not comply with Texas Rule of Civil Procedure 76a can be
waived for failure to comply with Texas Rule of Appellate Procedure 33.1(a)’s
preservation requirement. See Kallergis v. Brupbacher, No. 14-19-00470-CV, 2021
WL 506081, at *3 (Tex. App.—Houston [14th Dist.] Feb. 11, 2021, no pet.) (mem.
op.); Rice v. Lewis Energy Grp., L.P., No. 04-19-00234-CV, 2020 WL 6293454, at
*7 (Tex. App.—San Antonio Oct. 28, 2020, no pet.) (mem. op.); McAfee, Inc. v.
Weiss, 336 S.W.3d 840, 843 (Tex. App.—Dallas 2011, pet. denied).
18 Accordingly, we hold that Enriquez has not preserved his first and second
issues in his sealing-order appeal for appellate review.18
Plea-to-the-Jurisdiction Appeal19
In his first, second, third, and fourth issues, Enriquez argues that the trial court
erred in granting Dr. Morsy’s plea to the jurisdiction because the trial court’s “order
d[id] not have a factual or legal basis” and Dr. Morsy “did not present any evidence
controverting or refuting Enriquez’[s] pleaded jurisdictional claims.”20
18 Although Enriquez is representing himself, he is held to the same standard as a licensed attorney and must comply with all applicable laws and rules of procedure. See Tyurin v. Hirsch & Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191, at *1–2 (Tex. App.—Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.); In re Estate of Taylor, 305 S.W.3d 829, 837 (Tex. App.—Texarkana 2010, no pet.). “A pro se litigant is required to properly present [his] case on appeal, just as [he] is required to properly present [his] case to the trial court.” In re Estate of Taylor, 305 S.W.3d at 837. 19 Appellate cause no. 01-22-00852-CV. 20 On September 22, 2023, Enriquez filed a motion to supplement his brief and a supplemental brief in his plea-to-the-jurisdiction appeal. Enriquez filed his original appellant’s brief on February 8, 2023. His supplemental brief, filed more than seven months after his original appellant’s brief, attempts to raise new issues that could have been previously raised by Enriquez in his original appellant’s brief. As such, we liken Enriquez’s request to supplement to a situation where an appellant has attempted to raise a new issue in a reply brief. See Sea Mist Council of Owners v. Bd. of Adjustments for Town of South Padre Island Tex., No. 13-09-601-CV, 2010 WL 2891580, at *3 (Tex. App.—Corpus Christi–Edinburg July 22, 2010, no pet.) (mem. op.). A reply brief may not be used to raise new issues. See Warwick Oil & Gas, Inc. v. FBS Props., Inc., No. 01-14-00290-CV, 2015 WL 3637988, at *9–10 (Tex. App.—Houston [1st Dist.] June 11, 2015, no pet.) (mem. op.); Sea Mist Council of Owners, 2010 WL 2891580, at *3. Thus, we deny Enriquez’s motion to supplement his brief and strike his supplemental brief filed on September 22, 2023. See Warwick Oil & Gas, 2015 WL 3637988, at *9–10; Sea Mist Council of Owners, 2010 WL 2891580, at *3; see also Caldwell v. Zimmerman, No. 03-17-00273-CV, 2017 WL 4899447, at *3 n.3 (Tex. App.—Austin Oct. 26, 2017, pet. denied) (mem. 19 Here, Enriquez, in his briefing, challenges the trial court’s granting of Dr.
Morsy’s plea to the jurisdiction. However, the trial court, in the underlying
proceeding, did not just grant Dr. Morsy’s plea to the jurisdiction. It also granted
Dr. Morsy summary judgment on all of Enriquez’s claims against him and ordered
that Enriquez take nothing on his claims against Dr. Morsy. Further, the trial court
granted Dr. Morsy’s motion to dismiss all of Enriquez’s claims against him based
on Enriquez’s failure to comply with Texas Civil Practice and Remedies Code
chapter 74. An appellant must attack all independent bases or grounds that fully
support the complained-of order or judgment. See Oliphant Fin. LLC v. Angiano,
295 S.W.3d 422, 423–24 (Tex. App.—Dallas 2009, no pet.); Britton v. Tex. Dep’t of
Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
If an independent ground fully supports the complained-of order or judgment, but
the appellant assigns no error to that independent ground, we must accept the validity
of the unchallenged independent ground and thus any error in the ground challenged
on appeal is harmless because the unchallenged independent ground fully supports
the complained-of order or judgment. See Oliphant Fin., 295 S.W.3d at 423–24;
Britton, 95 S.W.3d at 681; see also In re A.K.P., No. 06-19-00075-CV, 2020 WL
op.) (where appellant filed supplemental brief raising issues not raised in his appellant’s brief, declining to consider those issues); Wilson v. State, 811 S.W.2d 700, 702 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (“A point of error raised for the first time in a supplemental brief is not properly presented for appellate review.”). 20 465281, at *2 (Tex. App.—Texarkana Jan. 29, 2020, no pet.) (mem. op.) (“When an
appellant fails to challenge an alternate basis for the appealed order, any error in the
challenged basis for the order is rendered harmless.” (internal quotations omitted)).
Enriquez, on appeal, does not challenge the trial court’s rulings granting Dr. Morsy’s
motion for summary judgment or granting Dr. Morsy’s motion to dismiss.21 Thus,
we hold that the trial court did not error in dismissing Enriquez’s claims against Dr.
Morsy. See Oliphant Fin., 295 S.W.3d at 424; Britton, 95 S.W.3d at 681–82.
We overrule Enriquez’s first, second, third, and fourth issues in his
plea-to-the-jurisdiction appeal.
Conclusion
We affirm the orders of the trial court.
Julie Countiss Justice
Panel consists of Chief Justice Adams and Justices Hightower and Countiss.
21 As previously noted, Enriquez, although proceeding pro se, is held to the same standard as a licensed attorney and must comply with all applicable laws and rules of procedure. See Tyurin, 2017 WL 4682191, at *1–2; In re Estate of Taylor, 305 S.W.3d at 837. “A pro se litigant is required to properly present [his] case on appeal, just as [he] is required to properly present [his] case to the trial court.” In re Estate of Taylor, 305 S.W.3d at 837.