Kelly Thomas v. Carl Pugliese Seth Johns, CMO of Carl's Handyman And Culpepper Plumbing & Air Conditioning, Inc.

• Court: Court of Appeals of Texas
• Decided: July 11, 2019
• Docket: 02-18-00064-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00064-CV ___________________________

KELLY THOMAS, Appellant

V.

CARL PUGLIESE; SETH JOHNS, CMO OF CARL’S HANDYMAN; AND CULPEPPER PLUMBING & AIR CONDITIONING, INC., Appellees

On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV-2016-01764

Before Kerr, Bassel, and Womack, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

This is the fifth appeal filed by pro se litigant Kelly Thomas arising from her

suit against Carl Pugliese, the owner of Carl’s Handyman; Seth Johns, the alleged

“CMO” of Carl’s Handyman; and Culpepper Plumbing and Air Conditioning, Inc. 1

This time, Thomas appeals from the trial court’s order dismissing all her claims with

prejudice. We will affirm.

Background

In August 2016, Thomas, proceeding pro se, sued Pugliese and Johns

(collectively, Carl’s Handyman) and Culpepper Plumbing alleging that they performed

defective plumbing work at her home. 2 Thomas later retained counsel, and in April

2017, counsel filed an amended petition on her behalf asserting claims for negligence,

breach of contract, and violations of the Texas Deceptive Trade Practices Act. Shortly

thereafter, Carl’s Handyman moved to abate the case because Thomas had not given

1 Thomas voluntarily dismissed one of her prior appeals. Thomas v. Pugliese, No. 02-17-00422-CV, 2017 WL 6759039, at *1 (Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (mem. op.). This court dismissed her other appeals for want of jurisdiction because they were based on unappealable interlocutory orders. Thomas v. Pugliese, No. 02-18-00026-CV, 2018 WL 771989, at *1 (Tex. App.—Fort Worth Feb. 8, 2018, pet. withdrawn) (mem. op.); Thomas v. Pugliese, No. 02-17-00423-CV, 2018 WL 547596, at *1–2 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.); Thomas v. Pugliese, No. 02-17-00407-CV, 2017 WL 6616243, at *1 (Tex. App.—Fort Worth Dec. 21, 2017, no pet.) (mem. op.). 2 Thomas filed at least two other suits related to the damages to her home. See Thomas v. Standard Cas. Co., No. 02-17-00335-CV, 2017 WL 6376659 (Tex. App.— Fort Worth Dec. 14, 2017, pet. withdrawn) (mem. op.); Thomas v. Logic Underwriters, Inc., No. 02-16-00376-CV, 2017 WL 5494386 (Tex. App.—Fort Worth Nov. 16, 2017, pet. denied) (mem. op.).

2 the written notice required by statute. See Tex. Bus. & Com. Code Ann. § 17.505. The

trial court abated the case for 60 days.

During the abatement, Thomas fired her attorney. After the case was

reinstated, Thomas’s attorney moved to withdraw. The trial court granted the motion.

In October 2017, Culpepper Plumbing specially excepted to Thomas’s

amended petition. The following month, Carl’s Handyman and Culpepper Plumbing

moved for sanctions against Thomas, complaining that Thomas and her attorney had

filed several documents while the case was abated and that throughout the litigation,

Thomas had filed—and continued to file—numerous voluminous pleadings without

any legal or factual basis.

The trial court heard the special exceptions and the sanctions motion on

November 21, 2017. During the hearing, Carl’s Handyman asked to join Culpepper

Plumbing’s special exceptions, and Thomas did not object. On November 28, 2017,

the trial court sustained the special exceptions,3 ordered Thomas to amend or replead

the 31 paragraphs constituting the factual-background and causes-of-action sections

of her petition within 30 days, and warned that if she failed to comply, the trial court

would strike those paragraphs. The trial court also granted the sanctions motions and

awarded Carl’s Handyman and Culpepper Plumbing $2,000 each in monetary

3 Carl’s Handyman later moved for leave to file special exceptions identical to those filed by Culpepper Plumbing. The trial court granted the motion, stating that the special-exceptions order “relating to Plaintiff having to replead is confirmed as to [Carl’s Handyman].”

3 sanctions, payable in $200 monthly payments due on the first day of the month.

Similar to the special-exceptions order, the trial court warned Thomas that if she

failed to make the payments, “either timely or in full,” the trial court would strike her

pleadings and dismiss her claims.

In December 2017, Thomas twice moved to recuse the trial-court judge. See

Tex. R. Civ. P 18a(a), 18b(b). The trial-court judge referred each motion to the

regional presiding judge. See Tex. R. Civ. P. 18a(f)(1)(B). The regional presiding judge

considered the motions separately and denied Thomas’s first motion on January 8,

2018, and her second motion on February 12, 2018. After the regional presiding judge

denied her second recusal motion, Thomas requested findings of fact and conclusions

of law. The regional presiding judge denied the request.

In the meantime, on January 12, 2018, Carl’s Handyman and Culpepper

Plumbing jointly moved to strike Thomas’s pleadings and to dismiss her claims

because she had failed to comply with the special-exceptions and sanctions orders.

After a hearing, the trial court signed a final judgment on March 1, 2018, granting the

dismissal motion and dismissing Thomas’s claims with prejudice.

Thomas has appealed. 4

4 Before the trial court dismissed her claims, Thomas prematurely filed a notice of appeal stating that she was appealing the regional presiding judge’s orders denying her recusal motions. See Tex. R. App. P. 27.1(a); Tex. R. Civ. P. 18a(j)(1)(A). After the trial court signed a final judgment dismissing her claims with prejudice, Thomas filed a notice of appeal stating that she was appealing from the judgment; we construed this notice as an amended notice of appeal. See Tex. R. App. P. 25.1(g), 27.1(a).

4 Thomas’s Issues and Appellate Arguments

We construe briefs liberally. See Tex. R. App. P. 38.9. But a pro se litigant is

held to the same standards as a licensed attorney and must comply with applicable

laws and procedural rules. Flores v. Office Depot, Inc., No. 02-10-00311-CV,

2011 WL 2611140, at *2 (Tex. App.—Fort Worth June 30, 2011, no pet.) (mem. op.);

Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied).

On appeal, a pro se appellant must properly present her case. Flores,

2011 WL 2611140, at *2; Strange, 126 S.W.3d at 678. To do so, her brief must contain,

among other things, “a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i).

In her brief, Thomas lists four issues: (1) whether court officers are required to

follow the Texas Rules of Civil Procedure, the Texas Civil Practice and Remedies

Code, and the discovery rules, or can they treat them as “option[al] in dealing with an

inexperienced citizen”; (2) whether the “universal guarantee of due process in the

Fifth Amendment to the U.S. Constitution, recited: ‘No person shall . . . be deprived

of life, liberty, or property, without due process of law,’” applies to victims;

(3) whether “[d]ue process is due”; and (4) whether Carl’s Handyman and Culpepper

Plumbing are required to provide Thomas “with relief in the form of monetary

compensation for damages.” See Tex. R. App. P. 38.1(f).

We have carefully reviewed Thomas’s brief. At times, it is difficult to identify

which argument corresponds to which issue. While “[w]e are mindful of the

5 difficulties that pro se litigants face,” we cannot make Thomas’s arguments for her.

Thiessen v. Fid. Bank, No. 02-17-00321-CV, 2018 WL 5993316, at * 3 (Tex. App.—Fort

Worth Nov. 15, 2018, pet. denied) (mem. op.). And we have no duty to independently

review the record and applicable law to determine whether the error complained of

occurred. Flores, 2011 WL 2611140, at *2. Construing her brief liberally, as we must,

we interpret her second and third issues as challenging the denials of her two recusal

motions; the first as challenging the trial court’s dismissal of her claims; and the fourth

as arguing her case on the merits. We address each of these complaints in turn.

Thomas’s Recusal Motions

In support of her second and third issues, Thomas argues that the regional

presiding judge erred by denying her recusal motions. We review the denial of a

recusal motion for an abuse of discretion. See Tex. R. Civ. P. 18a(j)(1)(A); Lopez v.

Tarrant Cty., Tex., No. 02-13-00194-CV, 2015 WL 5025233, at *4 (Tex. App.—Fort

Worth Aug. 25, 2015, pet. denied) (mem. op.). A trial court abuses its discretion if it

acts without reference to any guiding rules or principles—that is, if its act is arbitrary

or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,

134 S.W.3d 835, 838–39 (Tex. 2004).

As noted, the trial court considered each recusal motion separately. On January

8, 2018, the regional presiding judge denied Thomas’s first recusal motion without a

hearing because the motion did not comply with rule 18a because it (1) did not assert

a recusal ground listed in rule 18b, (2) was based solely on the judge’s rulings, and

6 (3) did not “state with detail and particularity the facts” relied upon to justify recusal.

See Tex. R. Civ. P. 18a(g)(3)(A) (“A motion to recuse that does not comply with [rule

18a] may be denied without an oral hearing.”); see also Tex. R. Civ. P. 18a(a)(2)–(4),

18b(b). Thomas offers no argument or authorities challenging this order. See Tex. R.

App. P. 38.1(i). She has thus waived the part of her first issue challenging the order

denying her first recusal motion. See id.; Allegiance Hillview, L.P. v. Range Tex. Prod.,

LLC, 347 S.W.3d 855, 873 (Tex. App.—Fort Worth 2011, no pet.) (“An inadequately

briefed issue may be waived on appeal.”). We therefore overrule this part of her

second and third issues as inadequately briefed. See Allegiance Hillview, 347 S.W.3d at

873.

Regarding the February 12, 2018 order denying her second recusal motion,

Thomas contends that the trial court erred by denying her recusal motion based on

Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147 (1994) and on the concurring

opinion in Rogers v. Bradley, 909 S.W.2d 872, 878–84 (Tex. 1995) (Enoch, J.,

concurring). As pointed out in Liteky, a party seeking recusal must satisfy a “high

threshold” before a judge must be recused. 510 U.S. at 558, 114 S. Ct. at

1158 (Kennedy, J., concurring). In determining whether recusal is proper,

“the . . . inquiry is whether a reasonable member of the public at large, knowing all the

facts in the public domain concerning the judge and the case, would have a reasonable

doubt that the judge is actually impartial.” Lopez, 2015 WL 5025233, at *4 (quoting

Kniatt v. State, 239 S.W.3d 910, 915 (Tex. App.—Waco 2007, order on reh’g)); see

7 Rogers, 909 S.W.2d at 880. Accordingly, the recusal determination “should be made

based on a studied analysis of all the circumstances involved rather than a knee-jerk

reaction to one fact in isolation.” Lopez, 2015 WL 5025233, at *4. This determination

employs a “reasonable-person test,” Kniatt, 239 S.W.3d at 915, and courts evaluate the

motion’s merits from “a disinterested observer’s point of view,” Rogers, 909 S.W.2d at

882. “Accordingly, the need for recusal is triggered only when a judge displays an

‘attitude or state of mind so resistant to fair and dispassionate inquiry’ as to cause a

reasonable member of the public to question the objective nature of the judge’s

rulings.” Lopez, 2015 WL 5025233, at *4 (quoting Liteky, 510 U.S. at 557–58,

114 S. Ct. at 1158).

Courts enjoy a “presumption of judicial impartiality.” Abdygapparova v. State,

243 S.W.3d 191, 198 (Tex. App.—San Antonio 2007, pet. ref’d). The movant bears

the burden of proving that recusal is warranted. See id. That burden is satisfied only

when the movant provides facts demonstrating the presence of bias or partiality “of

such a nature and extent as to deny the movant due process of law.” Ex parte Ellis,

275 S.W.3d 109, 117 (Tex. App.—Austin 2008, no pet.) (quoting Office of Pub. Util.

Counsel v. Pub. Util. Comm’n, 185 S.W.3d 555, 574 (Tex. App.—Austin 2006, pet.

denied)). Conclusory statements, conjecture, or mere assertions of bias will not satisfy

the movant’s burden or overcome the presumption of impartiality. See Rogers,

909 S.W.2d at 881, 884.

8 Thomas moved to recuse the trial-court judge, arguing that (1) he lacked

impartiality, (2) he was biased and prejudiced against Thomas, and (3) he had personal

knowledge of material evidentiary facts related to the case. See Tex. R. Civ. P.

18b(b)(1)–(3). In support of these recusal grounds, Thomas listed a litany of

complaints against the trial-court judge: he was biased and prejudiced against her

because she was a pro se litigant; he ignored the civil-procedure rules; he violated the

Code of Judicial Conduct; he treated her unfairly; he was biased in favor of the

defendants; he threatened her with 180 days in jail for merely saying “I object”;5 and

he “reached into other Courts to harm [her]” by making “untrue statements” to other

trial-court judges.

Here, Thomas failed to provide facts demonstrating the presence of bias or

partiality “of such a nature and extent as to deny [her] due process of law.” Ellis,

275 S.W.3d at 117. Her arguments were limited to conclusory statements, conjecture,

or mere assertions of bias, which are insufficient to satisfy her burden or to overcome

the presumption of judicial impartiality. See Rogers, 909 S.W.2d at 881, 884. She

complains of the trial court’s rulings, but judicial rulings alone almost never constitute

a valid basis for a recusal motion based on bias or partiality. In re H.M.S., 349 S.W.3d

5 Based on our own review of the record, we have found two instances in which the trial-court judge threatened to jail Thomas for contempt: (1) when she kept talking over the judge during a hearing on the trial-court clerk’s objection to Thomas’s affidavit of inability to pay costs and (2) when Thomas attempted to rehash the judge’s prior rulings and continued to talk over him at a status hearing.

9 250, 253 (Tex. App.—Dallas 2011, pet. denied) (citing Liteky, 510 U.S. at 555,

114S. Ct. at 1157 (majority opinion)). And judicial remarks, even those that are critical

or disapproving of, or even hostile to, parties or their cases, do not ordinarily support

a bias or partiality challenge. Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—Dallas

2017, no pet.). Finally, Thomas failed to provide any explanation to support her

contention that the trial-court judge had “personal knowledge of disputed evidentiary

facts concerning the proceeding.” Accordingly, we hold that the regional presiding

judge did not abuse his discretion by denying Thomas’s second recusal motion.

Thomas also complains that the regional presiding judge erred by refusing to

make findings of fact and conclusions of law. A trial court is required to file findings

and conclusions when properly requested only after signing a judgment in a case that

has been tried to the court. See Tex. R. Civ. P. 296, 297. “The purpose of Rule 296 is

to give a party a right to findings of fact and conclusions of law finally adjudicated

after a conventional trial on the merits before the court. In other cases[,] findings and

conclusions are proper, but a party is not entitled to them.” IKB Indus. (Nigeria) Ltd. v.

Pro–Line Corp., 938 S.W.2d 440, 442 (Tex. 1997). In such cases, findings are not

required because they are often unnecessary, because requiring them in every case

would unduly burden the trial courts, and because appellate courts are not obliged to

give them the same level of deference. Id. Because he was not required to file findings

and conclusions, the regional presiding judge did not err by refusing to do so.

We overrule the remainder of Thomas’s second and third issues.

10 Carl’s Handyman and Culpepper Plumbing’s Joint Dismissal Motion

In support of her first issue, Thomas asserts that the trial court signed the

dismissal order outside of its plenary power because when the trial court signed that

order, she had already filed her notice of appeal in this case and had filed a petition

for review with the Texas Supreme Court in one of her other appeals. See Standard Cas.

Co., 2017 WL 6376659, at *1–2. A trial court’s plenary power does not expire until

sometime after the trial court’s signs a final judgment in the case. See generally Tex. R.

Civ. P. 329b(d), (e). Because the dismissal order is the final judgment in this case, we

overrule this part of her first issue.

Thomas next complains that the trial court erred by dismissing her claims for

failing to amend her pleadings according to the special-exceptions order, contending

that she complied with the order. As noted, Carl’s Handyman and Culpepper

Plumbing moved to dismiss Thomas’s claims because she failed to comply with both

the special-exceptions and sanctions orders. The trial court dismissed Thomas’s claims

without giving a reason for its ruling.

Generally, an appellant must attack all independent bases or grounds that fully

support a complained-of ruling or judgment. Oliphant Fin. LLC v. Angiano, 295 S.W.3d

422, 423–24 (Tex. App.—Dallas 2009, no pet.). If an independent ground would fully

support the complained-of ruling or judgment, but the appellant assigns no error to

that independent ground, we must accept the validity of that unchallenged

11 independent ground, and any error in the grounds challenged on appeal is harmless.

Id. at 424.

Here—even though we have liberally construed her argument—Thomas fails

to attack the trial court’s dismissing her claims for failure to comply with the sanctions

order. Because she failed to attack this independent ground supporting the trial

court’s dismissal order, we must accept that ground’s validity. See id.; see also Cooper v.

McNulty, No. 05-15-00801-CV, 2016 WL 6093999, at *6 (Tex. App.—Dallas Oct. 19,

2016, no pet.) (mem. op.); Lagaite v. Pittman, No. 01-10-00554-CV, 2012 WL 1649850,

at *5 (Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.) (mem. op.). Thus, any

error in the ground Thomas has challenged on appeal is harmless because the

unchallenged independent ground fully supports the trial court’s ruling. See Oliphant

Fin., 295 S.W.3d at 424; see also Cooper, 2016 WL 6093999, at *6; Lagaite,

2012 WL 1649850, at *5. Because Thomas did not attack all the independent grounds

for the trial court’s judgment, we must uphold it. See Lagaite, 2012 WL 1649850, at *5;

Retzlaff v. GoAmerica Commc’ns Corp., 356 S.W.3d 689, 699 (Tex. App.—El Paso 2011,

no pet.). We thus overrule the remainder of Thomas’s first issue.

Thomas’s Merits-Based Arguments

In her final issue, Thomas argues that she is entitled to a new trial based on her

case’s merits, specifically because the evidence proves that she was damaged by Carl’s

Handyman’s and Culpepper Plumbing’s “deliberate and malicious fraud.” But because

12 we have overruled her first three issues, which are dispositive of her appeal, we do not

address her arguments supporting her fourth issue. See Tex. R. App. P. 47.1.

Conclusion

Having overruled Thomas’s dispositive issues, we affirm the trial court’s

judgment.

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Delivered: July 11, 2019