Thomas A. Jamison and Thomas E. Lowe v. Lake Travis Inn and RV Park, Brenda Horton, Ronnie March, and Suzy March

• Court: Court of Appeals of Texas
• Decided: July 13, 2017
• Docket: 03-16-00788-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00788-CV

Thomas A. Jamison and Thomas E. Lowe, Appellants

v.

Lake Travis Inn and RV Park, Brenda Horton, Ronnie March, and Suzy March, Appellees

FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO. C-1-CV-16-003787, HONORABLE TODD T. WONG, JUDGE PRESIDING

MEMORANDUM OPINION

Appellees Lake Travis Inn and RV Park, Brenda Horton, Ronnie March, and

Suzy March (collectively, the Park) gave appellant Thomas A. Jamison and his son Thomas E. Lowe

(the Plaintiffs) written notice requesting that they vacate the lot on which they were living in a

recreational vehicle. Jamison and Lowe vacated the property and later sued the Park, asserting causes

of action for “Unlawful Eviction,” “Unlawfully withholding Security Deposit,” “Harassment,”

“Intentional infliction of emotional distress,” and “Fraud.” Following a bench trial,1 the trial court

signed a final judgment ordering that the Plaintiffs take nothing on their claims and that the Park

1 The Plaintiffs represented themselves at the bench trial and on appeal. We note that, while we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To do otherwise would give pro se litigants an unfair advantage over litigants represented by counsel. See id. at 185. take nothing on its counterclaim for attorney’s fees.2 In four appellate issues, the Plaintiffs complain

that the trial court abused its discretion in not granting them a pre-trial conference, that the trial court

did not admit all of their evidence or allow them to fully represent themselves at trial, that the trial

court was not fair and impartial, and that the trial court erred in not recognizing a landlord-tenant

relationship between the Park and the Plaintiffs. We will affirm the trial court’s final judgment.

DISCUSSION

Issue 1

In their first issue, the Plaintiffs contend that the trial court abused its discretion in

refusing to provide them with a pre-trial conference. Whether to hold a pre-trial conference is in the

trial court’s discretion. See Tex. R. Civ. P. 166. The record before us contains no indication that

the Plaintiffs ever asked for a pre-trial conference until they asserted in their motion for new trial

that the trial court should have granted them one. Therefore, we conclude that the trial court did not

abuse its discretion in not holding a pre-trial conference. Accordingly, we overrule the Plaintiffs’

first issue.

Issue 2

In their second issue, the Plaintiffs contend that the trial court erred in failing to

consider some of their pleadings and in refusing to admit some of the evidence they offered. We will

address each of these pleadings and pieces of evidence in turn.

2 The Park has not appealed the trial court’s denial of fees.

2 First, the Plaintiffs complain that the trial court never ruled on their motion for

summary judgment. However, nothing in the record before us indicates that the Plaintiffs ever

attempted to have their motion set for a hearing. Therefore, we cannot conclude that the trial court

committed reversible error in not ruling on the Plaintiffs’ motion for summary judgment. See

Goodman v. Doss, No. 13-15-00079-CV, 2016 WL 455328, at *3 (Tex. App.—Corpus Christi

Feb. 4, 2016, no pet.) (mem. op.) (“Here, Goodman did not request or set a hearing on his motions

to compel discovery, did not obtain a ruling on any of his motions, and did not file either an affidavit

explaining the need for further discovery or a verified motion for continuance prior to the summary

judgment. Accordingly, Goodman failed to preserve error, if any.”) (citations omitted); In re Archer,

No. 05-15-00020-CV, 2015 WL 128579, at *2 (Tex. App.—Dallas Jan. 9, 2015, orig. proceeding)

(mem. op.) (“A court is not required to consider a motion that has not been properly called to its

attention. The duty to procure a hearing rests on the moving party, not upon the trial judge. A

judge’s failure to set a motion for hearing, when not asked to make such a setting, is not an abuse

of discretion.”) (citations omitted); Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75, 84–85 (Tex.

App.—Texarkana 2008, pet. denied) (“Corona failed to preserve any error for our review. It was

Corona’s responsibility to request a hearing and obtain a ruling on the motion to transfer venue.

Corona waived any issue concerning venue by not requesting a hearing or ruling.”) (citation

omitted); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding) (“A

court is not required to consider a motion not called to its attention. Showing that a motion was filed

with the court clerk does not constitute proof that the motion was brought to the trial court’s

attention or presented to the trial court with a request for a ruling.”) (citation omitted).

3 The Plaintiffs also assert that the trial court ignored their “Motion to Disqualify

Attorney,” “Memorandum of Law,” and “Motion to Take Judicial Notice.” However, the Plaintiffs

filed these documents after the trial court had signed the final judgment. Moreover, nothing in the

record before us indicates that the Plaintiffs requested a hearing on these documents. Therefore,

we cannot conclude that the trial court committed reversible error in not ruling on them.

In addition, the Plaintiffs argue that they “should have been permitted to submit every

piece of evidence that they attempted to submit” at the bench trial and complain that the trial court

excluded some of their evidence. Specifically, the Plaintiffs complain that the trial court refused

to admit a “discharge paper from Austin Oaks Hospital” and “a video tapped [sic] recording of a

conversation between Appellant Thomas Jamison and Appellee.” We review the admission or

exclusion of evidence under an abuse-of-discretion standard. See Southwestern Energy Prod. Co. v.

Berry-Helfand, 491 S.W.3d 699, 716 (Tex. 2016); Banks v. Bank of Am., N.A., No. 03-16-00046-CV,

2017 WL 1832489, at *3 (Tex. App.—Austin May 4, 2017, no pet. h.) (mem. op.). The Plaintiffs

offered these items after resting their case, and they have not provided any legal argument concerning

their admissibility. Therefore, we cannot conclude that the trial court abused its discretion in

excluding this evidence.

The Plaintiffs also complain that the trial court refused to admit a “HUD Housing

Complaint.” When the Plaintiffs offered this document, the Park objected on the basis of relevance

and hearsay, and the trial court sustained the objection. On appeal, the Plaintiffs argue that this

document “should have been considered as evidence that Appellants[’] claims of threats to evict due

to visits from the Mental Health Expanded Mobile Crisis Unit and Travis County Sherriff’s [sic]

4 Deputies were true.” However, the Plaintiffs have not challenged the trial court’s conclusion that

the document was inadmissible hearsay. Moreover, even if the document was admissible, the

Plaintiffs have not explained how they were harmed by its exclusion. See Tex. R. App. P. 44.1(a)

(“No judgment may be reversed on appeal on the ground that the trial court made an error of law

unless the court of appeals concludes that the error complained of: (1) probably caused the rendition

of an improper judgment; or (2) probably prevented the appellant from properly presenting the case

to the court of appeals.”).

Finally, the Plaintiffs argue that the “Trial Court ignored the timing of the eviction

that occurred immediately after discharge of Appellant Thomas Lowe from the psychiatric hospital

as evidence supporting claims of discrimination for mental illness” and that the trial court “did not

even wait for the department of HUD to conclude [its] investigation to deny relief to Appellants.”

However, the Plaintiffs have not cited any legal authorities or otherwise explained why these

alleged actions constitute reversible error. Specifically, the Plaintiffs have not directed our attention

to any authority holding that the trial court was required to “wait for the department of HUD to

conclude [its] investigation” before the court could rule on the Plaintiffs’ claims.

Finding no reversible error in the Plaintiffs’ second issue, we overrule it.

Issue 3

In their third issue, the Plaintiffs contend that the trial court’s actions demonstrated

bias and “extreme prejudice” against the Plaintiffs. In support of this contention, the Plaintiffs

allege that: (1) the trial court allowed two attorneys to represent the appellees even though the

Plaintiffs did not have any notice that a second attorney would be appearing; (2) the trial court did

5 not allow Lowe “to speak and assist in representing himself as a Pro Se Litigant”; (3) the trial court

instructed Jamison to testify in narrative form but then sustained an objection that he was testifying

in narrative form; (4) the trial court sustained an objection on the ground that testimony was

repetitive when in fact it was not repetitive; (5) the trial court failed to grant the Plaintiffs’ “Motion

For New Hearing” on the ground that the appellees were represented by a second attorney without

informing the Plaintiffs beforehand; (6) although defense witnesses contradicted themselves, the

trial court “did not impeach” the witnesses and instead “allowed [the witnesses] to continue telling

lies under oath” “and never threw out this dishonest testimony”; (7) the trial court “told Appellant

to stop interrupting the witness immediately after the witness interrupted Appellant,” “admonished

Appellant not to interrupt the witness who had just interrupted him,” and “added insult to injury by

telling Appellant who was doing the questioning, not to be argumentative, when it was Appellee

who was being dishonest, evasive and argumentative as a hostile witness”; (8) the trial court

“demonstrated callous indifference to the fact that Appellees were directly responsible for the

sudden termination of crucial medical treatment that was vital to the mental health of Appellant,

Thomas Lowe”; (9) the trial court “was presented evidence that it chose to simply ignore and

its ruling does not even resemble anything akin to justice”; and (10) when the defense attorney

objected without stating the grounds for his objection, the trial court suggested the grounds and

sustained the objection.

Judicial rulings alone almost never constitute a valid basis for showing the trial

court’s bias or impartiality, and judicial remarks that are critical, disapproving, or even hostile to a

party or counsel do not demonstrate bias—nor do expressions of impatience, annoyance, or even

6 anger. See Liteky v. United States, 510 U.S. 540, 555–56 (1994); Dow Chem. Co. v. Francis,

46 S.W.3d 237, 240 (Tex. 2001); Spears v. Falcon Pointe Cmty. Homeowner’s Ass’n,

No. 03-14-00650-CV, 2016 WL 1756486, at *6 (Tex. App.—Austin Apr. 28, 2016, no pet.) (mem.

op.); Thomas v. Graham Mortg. Corp., 408 S.W.3d 581, 595–96 (Tex. App.—Austin 2013, pet.

denied). Moreover, although the Plaintiffs correctly assert that the trial court helped supply the

grounds for one of the Park’s objections and that the trial court at times expressed displeasure with

the Plaintiffs, the record reveals that the trial court also assisted the Plaintiffs and occasionally

expressed impatience or annoyance with the Park’s attorneys. We cannot conclude, based on the

record before us, that the trial court exhibited bias or impartiality. Accordingly, we overrule the

Plaintiffs’ third issue.

Issue 4

In their fourth and final issue, the Plaintiffs contend that the trial court “failed to

correctly apply the laws regarding what constitutes a property interest that creates a landlord/tenant

relationship” and failed “to recognize elements of fraud in Appellee’s lease agreement that they

claim to be a site service agreement.” The Plaintiffs also contend that the trial court “failed to

correctly apply the law with regard to security deposits.”

The elements of common-law fraud are: (1) a material representation; (2) which was

false; (3) which was known to be false when made or was made recklessly as a positive assertion

without knowledge of its truth; (4) which was intended to be relied upon; (5) which was relied upon;

and (6) which caused injury. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001);

Berger v. Flores, No. 03-12-00415-CV, 2015 WL 3654555, at *8 (Tex. App.—Austin June 12, 2015,

7 no pet.) (mem. op.). Here, the Park’s service agreement provided, “This is a Month to Month

agreement. Either party may terminate this agreement at any time, for any reason, with 30 day written

notice.” The agreement also stated, “Under no circumstances should you consider yourself a tenant

with a lease” and, “You are NOT under a landlord/tenant arrangement: THEFT OF SERVICES

APPLIES.” The Plaintiffs have not cited any relevant authority in support of their argument that the

Park’s service agreement created a landlord-tenant relationship despite its explicit statement to the

contrary. Therefore, the Plaintiffs have not established that the service agreement contained a false

material representation. Moreover, even if the agreement’s statement that it created no landlord-

tenant relationship was false, the Plaintiffs presented no evidence at trial that the Park knew that

this representation was false or was reckless as to its falsity. For these reasons, we cannot conclude

that the trial court committed reversible error in rendering a take-nothing judgment as to the

Plaintiffs’ fraud claim.

Finally, the Plaintiffs contend that the trial court should have concluded that the

Park was required to return the Plaintiffs’ security deposit. According to the Plaintiffs, “[w]hat

Appellee’s [sic] are doing is collecting money upon move-in for an electric bill that hasn’t even

been generated yet,” and “[t]his constitutes fraud.” However, the service agreement specified that

the Park would collect a security deposit that it would return to the Plaintiffs “less any amounts

you owe” and also explains how electricity payments would be made. The Plaintiffs have not cited

any authorities or made any legal arguments in support of their contention that the Park was required

to return the security deposit despite the Plaintiffs’ unpaid electric bill.

Finding no reversible error in the Plaintiffs’ fourth issue, we overrule it.

8 CONCLUSION

We affirm the trial court’s judgment.

__________________________________________

Scott K. Field, Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed

Filed: July 13, 2017