Samuel T. Russell v. Dallas County

• Court: Court of Appeals of Texas
• Decided: May 21, 2018
• Docket: 05-17-01475-CV
• Status: Published

Opinion

. . RECEXVED Fifth Court of Appeals Court of Appeals

MAY 1 8 2018 Lisa Matz NO. 05-17-01475-CV Clerk, 5th District

Samuel T. Russell, Appellant V.

Dallas County, Appellee

FXLED :IN APPELLANT'S BRIEF Court of Appeals MAY .2 1 2018 Appealed from the 162nd District Court (Auxiliary Court, 6A) Lisa Matz Clerk, 5th Dfstrtct Dallas County, TX

Trial Cause Number: TX-17-00409

Hon. M. Kent Sims Presiding

Submitted by: Samuel T. Russell 5412 Stoneboro Trail Dallas, TX 75241 Email: russell4you@yahoo.com Prose

ORAL ARGUMENT REQUESTED "

Fifth Court of Appeals

NO. 05-17-01475-CV

APPELLANT'S BRIEF

Appealed from the 162°d District Court (Auxiliary Court, 6A)

Dallas County, TX

Samuel T. Russell 5412 Stoneboro Trail Dallas, TX 75241 Email: russe114you@yahoo.com Prose

ORAL ARGUMENT REQUESTED

Appellant's Brief Page 1 of 16 Identities of Parties and Counsel

Samuel T. Russell, Appellant, 5412 Stoneboro Trail, Dallas, TX 75241; email:

russe114you@yahoo.com

Pro Se

Linebarger, Goggan, Blair, & Sampson, LLPO, Attorney for Appellee, 2777

N. Stemmons Frwy., Suite 1000, Dallas, TX 75207; (214) 880-0089

Appellant's Brief Page 2 of 16 a •

Table of Contents

Identity of Parties and Counsel ............................................................................ 2

Table of Contents .................................................................................................. 3

Index of Authorities ............................................................................................... 4

Statement of the Case and Jurisdiction ................................................................ 5

Issues Presented ................................................................................................... 6

Statement of Facts ................................................................................................ 7

Summary of the Arguments ................................................................................. 8

Arguments ....................................................................... .................................... 10

Conclusion/Prayer ........................................................................ 14

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 16

Certificate of Service ..................................................................... 16

Appendix Included

Appellant's Brief Page 3 of 16 Index of Authorities

Doe v. Tulane University et al (2: 17-cv-12081) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dimotsis v. Lloyds, 966 SW 2d 657-1998 ........................................... 6,11

Plessy v. Ferguson, 1896 ................................................................ 12

Ryland Enter., Inc. v. Weatherspoon, 355 S. W.3d 664, 665 (Tex. 2011) ........ 6,11

Svetlana Altman v. State ofFlorida (2010) .......................................... 12

Williams, 88 S. W.3d at 632; Dimotsis v. Lloyds, 966 SW 2d 657-1998 ....... 6,11

Constitutions

14th Amendment of the U.S. Constitution (U.S.C.) .................. 5-7,9-10,12-15

Statutes and Rules

Tex. Code of Judicial Conduct, Canon 3.B.5 ........................ 5-7,9-10, 13-15

Texas Rules of Civil Procedure (T.R.C.P.4) ......................... 5,6,8,10-11,14-15

Tex. Rule App. Proc. 26.2(a) ............................................................ 6

Appellant's Brief Page 4of 16 To the Honorable Justices of the Court of Appeals:

Samuel T. Russell, Appellant, submits this Brief in support of his appeal of

his notice of judgment:

Statement of the Case and Jurisdiction

Appellant alleges the court 1) violated his rights in accordance with Texas

Rules of Civil Procedure 4 (T.R.C.P.4), 2) deprived him of his rights in accordance

with the 14th Amendment of the United States Constitution (14 USC), and 3) was

prejudice in accordance with Texas Code of Judicial Conduct 3.B.5 (T.C.J.C.5).

Whereas, T.R.C.P.4 says, "In computing any period of time prescribed or

allowed by these rules, by order of court, or by any applicable statute, the day of

the act, event, or default after which the designated period of time begins to run is

not to be included. The last day of the period so computed is to be included, unless

it is a Saturday, Sunday, or legal holiday, in which event the period runs until the

end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays,

Sundays, and legal holidays shall not be counted for any purpose in any time

period of five days or less in these rules, except that Saturdays, Sundays, and legal

holidays shall be counted for purpose of the three-day periods in Rules 21 and 21 a,

extending other periods by three days when service is made by mail." (See Exhibit

A).

Appellant's Brief Page 5 of 16 Whereas, 14 USC says, "that no state shall deprive anyone of either "due

process of law" or of the "equal protection of the law"". (Plessy v. Ferguson,

1896).

Whereas, T.C.J.C.5 says," "A judge shall perform judicial duties without ...

prejudice."

Jurisdiction

On December 22, 201 7, Appellant filed a timely notice of appeal, thus

perfecting this appeal. (CR, 84); See Tex. Rule App. Proc. 26.2(a). As a result, this

Court has jurisdiction over this appeal.

Issues Presented

Issue 1

Appellant alleges that according to T.R.C.P.4, the Court errored when it

ruled/judged that Appellant violated the Filing Out-of-Time Rule due to the State

of Texas Rules of Civil Procedures, which says Appellant did not. (Ryland Enter.,

Inc. v. Weatherspoon, 355 S. W.3d 664, 665 (Tex. 2011); Williams, 88 S. W.3d at

632; Dimotsis v. Lloyds, 966 SW 2d 657-1998). (See Exhibit B).

Appellant's Brief Page 6 of 16 Issue 2

Appellant further alleges that the Court errored by granting Appellee 's

request without granting Appellant equal due process of the same cause. (14th

Amendment of the U.S. Constitution (U.S.C.))

Issue 3

Appellant thirdly alleges that the Court errored by proceeding with the ruling

in spite of opposition from both the Defendant and Plaintiff for him to do so. (T. C.

J.C. 5).

Statement of Facts

According to the Reporter's Record, the Court ruled (without the Appellee

requesting for Defendant's Briefs dismissal) that Defendant's Brief exceeded the

designated period of time to file; thus, the Court self-imposed its ruling that

Defendant's brief was "non-admissible."

The Court asked Appellant why his Brief was filed out of time.

Appellant responded, "Due to the 4-day Holiday weekend (Thanksgiving

2017), he was unable to file on the due date because the Courts were closed, and

the first Monday after the Holiday weekend was the earliest he could file his Brief'

(see Reporter's Record). Appellant's Brief Page 7 of 16 Issue 2

According to the Reporter's Record, while in court, Appellee insisted upon

the court that it record an objection to the court's self-imposed ruling on the non-

admissible filed Out-of-Time Defendant's Brief for the "protection" of her client

and the Court granted Appellee's request (see Reporter's Record).

After Appellee recorded her response to Defendant's non-admissible Out-of-

Time Filed Brief, the court asks the Appellant ifhe opposed; and the Appellant

said "yes, he opposed" (see Reporter's Record).

According to the Reporter's Record, Appellant opposed that the record was

filed out of time; likewise, Appellee opposed this ruling of the court by insisting

that the court/judge record her response to Defendant's Brief (see Reporter's

Record).

Summaries of the Arguments

Summary of the Statement

In conclusion, Appellant sums up that the Court made a rush decision when

the Law for filing out-of-time is very clear where Holidays and weekends are

involved (see Statement of the Case and T.R.C.P.4).

Appellant's Brief Page 8 of 16 Summary of the Issues

Furthermore, Appellant sums up that the Court's ruling to allow testimony

about a brief (legal document) that it had said was inadmissible (due it being filed

out-of-time) was a simple error on the Court's behalf that led to Appellant's due

process rights being violated, overlooked, and non-recognized, which 'encroach'

upon the rights guaranteed by 14 USC.

Summary of the Facts

Thirdly, Appellant sums up that the Court was overzealous with its ruling

when both Defendant and Plaintiff to the suit openly opposed Court's self-imposed

decision that the brief was filed out-of-time; whereas Appellant said he opposed

(see Reporter's Record).

Appellee opposed by insisting her verbal response be recorded regardless of

the Judge's/Court's ruling (see Reporter's Record).

With this being said, proven, and within the scopes of a final determiner (the

written laws of the State of Texas and the U. S.), the Court was prejudiced (Texas

Code of Judicial Conduct, Canon 3. B. 5).

Appellant's Brief Page 9 of 16 Final Summary

Appellant believes Judge M. Kent Sims made a simple mistake based on

T.R.C.P.4, 14 USC, and T.C.J.C.5; however, he is yet a judge capable of learning.

Judge Sims is the one that advised Appellant to "take my claims to another

court" (see Reporter's Record).

Appellant requests a re-hearing with the same judge or a jury trial to avoid

attracting another judge that could make similar mistakes.

Arguments

Issue 1 Argument

The State of Texas rule for filing periods out of time, when court is closed,

on the filing period due date because of weekends or Holidays says:

"In computing any period of time prescribed or allowed by these rules, by order of

court, or by any applicable statute, the day of the act, event, or default after which

the designated period of time begins to run is not to be included. The last day of

the period so computed is to be included, unless it is a Saturday, Sunday, or legal

holiday, in which event the period runs until the end of the next day which is not a

Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall

not be counted for any purpose in any time period of five days or less in these

rules, except that Saturdays, Sundays, and legal holidays shall be counted for Appellant's Brief Page 10 of 16 purpose of the three-day periods in Rules 21 and 21 a, extending other periods by

three days when service is made by mail." (Texas Rules of Civil Procedure

(T.R.C.P.4)). (See Exhibit A).

The Court ruled (without the Appellee requesting for Defendant's Briefs

dismissal) that Defendant's Brief exceeded the designated period of time to file;

thus, the Court self-imposed its ruling that Defendant's brief was "non-

admissible".

The Court asked Appellant why his Brief was filed out of time.

Appellant responded, "Due to the 4-day Holiday weekend (Thanksgiving

201 7), he was unable to file on the due date because the Courts were closed, and

the first Monday after the Holiday weekend was the earliest he could file his Brief'

(see Reporter's Record)

Appellant alleges that according to T.R.C.P.4, the Court errored when it

ruled/judged that Appellant violated the Filing Out-of-Time Rule due to the State

of Texas Rules of Civil Procedures. (Ryland Enter., Inc. v. Weatherspoon, 355

S. W.3d 664, 665 (Tex. 2011); Williams, 88 S. W.3d at 632; Dimotsis v. Lloyds,

966 SW 2d 657-1998). (See Exhibit B).

Appellant's Brief Page 11 of 16 Issue 2 Argument

Appellant's 2nd Argument is based on the Court granting Appellee's request

of an official recording response to Defendant's "non-admissible" filed Out-of-

Time Brief.

While in court, Appellee insisted upon the court that it record an objection to

the court's self-imposed ruling on the non-admissible filed Out-of-Time

Defendant's Brief for the "protection" of her client and the Court granted

Appellee's request (see Reporter's Record).

Appellant alleges his 14th Amendment of the U.S. Constitution (U.S.C.)

rights were violated because it says, "that no state shall deprive anyone of either

"due process of law" or of the "equal protection of the law"". (Plessy v. Ferguson,

After Appellee recorded her response to Defendant's non-admissible Out-

of-Time Filed Brief, the court asks the Appellant ifhe opposed; and the Appellant

said "yes, he opposed" (see Reporter's Record). Does not an error occur when a

Court allows, supports, and officially records the Appellant's writ; yet does not

allow the Appellant to defend his "non-admissible" writ? (Doe v. Tulane

University et al (2:17-cv-12081).

In accordance with the 14th Amendment of the U.S.C., why wasn't

Appellant given a chance to offer rebuttal in support of his "non-admissible" writ

Appellant's Brief Page 12 of 16 that the Appellee officially challenged? (Svetlana Altman v. State of Florida

(2010).

Were Appellant's U.S.C. 14th Amendment's Rights violated when he was

not granted "due process of the law" and "equal protection of the law" by the Court

depriving him an opportunity to counter-respond on his non-admissible Out-of-

Time Filed Brief?

Likewise, was Appellant not entitled to "equal protection" and "due

process" as defined in the U.S.C. 14th Amendment; and did not the Court error by

granting Appellee's request without granting Appellant equal due process of the

same cause?

Issue 3 Argument

The law says "A judge shall perform judicial duties without ... prejudice," (a

forejudgment, bias; partiality; preconceived opinion. (A leaning toward one side of

a cause for some reason other than a conviction of its justice) (T.C.J.C.5).

Appellant thinks the Court was overzealous with its ruling when both

Defendant and Plaintiff to the suit openly opposed the Judge's self-imposed

decision that the brief was filed out-of-time.

Appellant said he openly opposed the Court's prejudice judgment (see

Reporter's Record).

Appellant's Brief Page 13 of 16 Appellee openly opposed the Court's prejudice judgment by insisting on

having an official court recording of her verbal response (see Reporter's Record).

Appellant alleges that the Court errored by proceeding with the ruling in

spite of opposition from both Defendant and Plaintiff for him to do so. (T. C. J. C.

5).

Was not the Court prejudice with its ruling when both Defendant and

Plaintiff objected to said ruling?

Conclusion/Prayer

Does not an error occur when the Court's judgment is not aligned with the

Rule of Law? (See Exhibit C).

Has not the Appellant exposed error on the behalf of the Court when a

governing State Rule of Law applies (Holiday Out-of-Time Filing - T.R.C.P.4)?

Has not the Appellant raised a Federal inquiry of error on behalf of the Court

when a Federal Rule of Law is at question (Deprivation of Due Process and Equal

Protection - 14th Amendment of the U.S.C.)?

Appellant prays for a jury trial if this Appeal is granted and not sent back to

the same Court (Justice M. Kent Sims, Auxiliary Court-6A).

Is Appellant out of order in his belief that the case should be set for re-

hearing because court errored by self-imposing that Defendant's Brief was

Appellant's Brief Page 14 of 16 somehow filed in violation ofT.R.C.P.4, which says Appellant filed within the

allotted Rule time?

Likewise, should Appellant expect this case be set for re-hearing, because

the court errored by granting Appellee 's request for an official court recording

when the court had just previously judged Defendant's brief was non-admissible or

defendable, which is in violation of the U.S.C. 14th Amendment?

Finally, is Appellant incorrect in his allegation that Judge Sims violated

T.C.J.C.5?

Submitted by:

//\_/TQ_J ( Samuel T. Russell 5412 Stoneboro Trail Dallas, TX 75241 Email: russell4you@yahoo.com Prose

Appellant's Brief Page 15 of 16 Certificate of Service

I hereby certify pursuant to TEX. R. CIV. P. 21 a, that a true and correct copy of

the foregoing instrument was served upon counsel for all parties via (certified mail, >+- return receipt requested/hand delivery) on this, the <""L{ - day of May,

2018.

Samuel T. Russell, pro se

Certificate of Compliance with Rule 9.4

Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this document

complies with the type-volume limitations because it is computer generated and

does not exceed 15,000 words. Using the word-count feature of Microsoft Word,

the undersigned certifies that this document contains 2,312 words in the entire

document. This document also complies with the typeface requirements because it

has been prepared in a proportionally spaced typeface using Microsoft Word in 14-

point Times New Roman. This document complies with the paper size and margin

requirements as well.

I u j,Q_l( Samuel T. Russell,pro se

Appellant's Brief Page 16 of 16 INDEX

I. Exhibit A - Court Holiday Schedule

II. Exhibit B -Proof of Defendant's Brief Filing Date

III. Exhibit C - Notice of Judgment

Appellant's Brief Index County Clerk Holiday Schedule: 2017 Dallas/Fort Worth-area Prepared by Title Data, Inc.

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• SUIT NO. TX-17..()0409

DAUAS COUNTY, ET Al §

§

vs. §

BANKERS TRUST COMPANY, ET AL § DALLAS COUNTY, TEXAS

DEFENDANT'S OFFER AND COUNJEI-SUIT

COMES NOW Defendant Samuel Russell presenting the Pe(endanfs Oller concerning any and

all delinquent taxes owed on the property located at 2758 Locust Ave., DaHas, TX 75216, prior

to 2006 pursuant to F.R.C.P. 8(b)(3).

Defendant apologizes for aH delinquent taxes on this property.

I. Defendant only acquired a legal record of ownership on the real property in October

23, 2017 (see Exhibit B); and has been sued for over $37,000 of delinquent taxes,

penalties, and interest on a real property, whtch onfy has a market value of $27,040

(see Exhibit C).

II. Defendant has a history, since Inhabiting the property ln 2006, of paying something

on the taxes each year.

Ill. Defendant calculates the amount of back taxes owed (without penatties and

interest) to be $1,330.00 (see Exhibit A); whereas Plaintiff claims the amount to be

$37,416.28.

D£FEN0ANT"S Offer Sutt No. TX-17-00409 Page lof8 AcaK.lnt No. 00000507886000000

-~ FELICIA PITRE: DISTRICT CLERK DALLAS COUNTY 600 COMMERCE, 1" FLOOR DALLAS, TEXAS 752024606

November 30. 2017

SAMUEL TODD RUSSELL 5412 STONEBORO TRAIL DALLAS TX 75241

NOTICE OF JUDGMENT!

CAUSE No. TX-17-00409

Dallas County In the\ District Court Plaintiff(s), V. of Dallas County, Texas Bankers Trust Company Defendant(s) 162nd District Court

TO WHOM IT MAY CONCERN:

In accordance with the provisions of Rule 306{a>(3) of the Texas Rules of Civil ProcedW'C, you are hereby notifiaf that a Judgment has been entered in the above-referenced matter. The judgment is in favor of PLAINTIFF and against the DEFENDANT(s) signed on 11/29/2017.

Respectfully, Felicia Pitre, District Clerk