Robert Burns McCall v. the City of Waco

• Court: Court of Appeals of Texas
• Decided: March 16, 2022
• Docket: 10-21-00287-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00287-CV

ROBERT BURNS MCCALL, Appellant v.

THE CITY OF WACO, Appellee

From the 74th District Court McLennan County, Texas Trial Court No. 2012-1063-3

MEMORANDUM OPINION

Robert Burns McCall, acting pro se, attempts to appeal from the trial court’s

judgment signed on September 30, 2021. We will dismiss this appeal for want of

jurisdiction.

In the underlying case, the City of Waco, the Waco Independent School District,

and the McLennan County Education District sued various individuals to collect

allegedly delinquent property taxes. McCall was added as a defendant in Plaintiffs’ First Amended Petition, filed on June 8, 2015. McCall never requested any counter-relief from

the plaintiffs.

McCall was omitted as a defendant in Plaintiffs’ Third Amended Petition, filed on

April 29, 2021. On May 7, 2021, the plaintiffs also filed a Notice of Partial Nonsuit, in

which they stated that they “no longer desire to pursue their cause of action in said suit

against the Defendants listed below,” which included McCall, and that they “do hereby

nonsuit this cause of action . . . as it pertains to” those listed defendants. On September

30, 2021, the trial court then signed a final judgment against the remaining defendants

who were not included in the Notice of Partial Nonsuit.

“Subject matter jurisdiction requires that the party bringing the suit have standing,

that there be a live controversy between the parties, and that the case be justiciable.” State

Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).

“An amended pleading supersedes and supplants earlier original pleadings.” Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 679 (Tex. App.— Houston [1st Dist.] 1986, writ ref’d n.r.e.) (citing TEX. R. CIV. P. 65 (“Unless the substituted instrument shall be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as part of the pleading in the record of the cause….”)). “[C]auses of action not contained in amended pleadings are effectively dismissed at the time the amended pleading is filed.” FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous[.] Sys., 255 S.W.3d 619, 633 (Tex. 2008). “Parties to a suit are just as effectively dismissed from a suit by omitting their names from an amended pleading as where a formal order of dismissal is entered.” Mercure Co., 715 S.W.2d at 679; see Randolph v. [Jackson] Walker [L.L.P.], 29 S.W.3d 271, 274 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“When a party’s name is omitted from an amended pleading, he is effectively dismissed as where a formal order of dismissal is entered.”).

Watanabe v. Summit Path Partners, LLC, --- S.W.3d ---, No. 01-19-00302-CV, 2021 WL

3501542, at * 14 (Tex. App.—Houston [1st Dist.] Aug. 10, 2021, no pet.).

McCall v. City of Waco Page 2 Furthermore, a nonsuit is effective when filed. Bush v. Hines, 594 S.W.3d 713, 714

(Tex. App.—Waco 2019, no pet.) (citing Univ. of Tex. Med. Branch at Galveston v. Estate of

Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam)). Accordingly, when a plaintiff

nonsuits his claims against a defendant who has no pending claims for affirmative relief,

there is no longer a case or controversy between the parties. See Estate of Blackmon, 195

S.W.3d at 100; see also Hirner v. Doe, No. 12-08-00046-CV, 2009 WL 1871794, at *1 (Tex.

App.—Tyler June 30, 2009, no pet.) (mem. op.).

We therefore conclude that there is no longer a case or controversy between the

plaintiffs and McCall. Accordingly, we lack subject matter jurisdiction to consider this

appeal. See Gomez, 891 S.W.2d at 245.

On December 20, 2021, this Court issued an order notifying McCall that the Court

may dismiss this appeal unless, within twenty-one days of the date of the order, McCall

showed grounds for continuing this appeal. McCall responded by filing a second notice

of appeal. In the second notice of appeal, McCall explains that the final judgment in this

case concerns his deceased father and that McCall is willing to defend his father in this

proceeding because his father cannot defend himself. But a non-lawyer may not appear

pro se on behalf of a party. See Pham v. Harris Cnty. Rentals, L.L.C., 455 S.W.3d 702, 710

(Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding non-lawyer may not act as

attorney on behalf of his wife); see also Kankonde v. Mankan, No. 08-20-00052-CV, 2020 WL

5105806, at *2 (Tex. App.—El Paso Aug. 31, 2020, no pet.) (“[A] non-attorney cannot

litigate an appeal on behalf of an estate or a corporate entity.”) (mem. op.). Accordingly,

McCall has not shown grounds for continuing this appeal.

McCall v. City of Waco Page 3 This appeal is therefore dismissed for want of jurisdiction.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Dismissed Opinion delivered and filed March 16, 2022 [CV06]

McCall v. City of Waco Page 4