Opinion
No. 01-08-00435-CV
Opinion issued December 31, 2009.
On Appeal from the 405th District Court, Galveston County, Texas, Trial Court Cause No. 06-CV-0072.
Panel consists of Justices KEYES, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellant Ronald X. Gordon challenges the trial court's dismissal of his suit to regain his real property or to obtain money damages for his loss as a result of a transaction between himself and a bail bondsman. In two issues, Gordon argues that (1) the trial court erred in taking action on the case when all of the parties were still under federal jurisdiction and (2) the trial court erred by rendering judgment and dismissing the case based on an order issued by another trial court.
We affirm.
Background
Gordon owned a four-plex in LaMarque and began residing there in 1988. In 1990, he claimed a homestead exemption for this property. In 1991, while he was in jail, Gordon hired attorney Alton Williams to represent him. Gordon then conveyed the property by warranty deed to a bondsman, who later conveyed the property to Williams. Williams sold the property to Anna Marie Madison, a bona fide purchaser.
The Texas Supreme Court determined that Madison was a bona fide purchaser in Madison v. Gordon, 39 S.W.3d 604, 607 (Tex. 2001).
Appellee Donald Allen was an officer with the Galveston County Sheriff's Office. As part of his duties, Allen interacted with local bonding companies and served as the Sheriff's representative on the Galveston County Bail Bond Board. Appellees Marvin and Doris Bennett are subsequent purchasers of the four-plex.
Gordon filed the current suit in the 405th District Court of Galveston County. According to the briefing of the parties, Gordon originally named Galveston County Bail Bonds Board and the Galveston County Sheriff as defendants. The trial court apparently granted those parties' motions for summary judgment and dismissed them from the case on April 9, 2007. Allen was added as a defendant on April 18, 2007. The trial court granted Allen's motion for summary judgment on November 29, 2007.
The appellate record does not contain any earlier pleadings naming them as defendants, any of their motions for summary judgment, or any of the trial court's orders dismissing them from the case. Gordon does not contest the trial court's rulings on these motions in his appellate brief.
On December 7, 2007, Gordon filed a motion for reconsideration, asking the trial court to reconsider its grant of Allen's motion for summary judgment. On December 10, 2007, Gordon filed his fourth amended petition, naming Allen, Marvin, and Doris Bennett as defendants.Gordon alleged that Allen, "functioning in a supervisory capacity," is liable to him because he neglected to "enforce the Bail Bond Act and/or the laws of the State of Texas," allowing the bondsman to execute "illegal lien(s) on Gordon's homestead property," and to sell the property to Williams. Gordon alleged that the Bennetts "unlawfully withhold from Gordon the possession of the recorded `Residential Homestead Exemption' premises" and that the Bennetts had "no title or just claim to any interest in the property." On January 11, 2008, the Bennetts filed a pro se answer to Gordon's claims denying any involvement in the allegations made by Gordon.
This is the first document included in the appellate record.
In February and March of 2008, Gordon filed in the trial court notices of removal to the District Court for the Southern District of Texas. On March 26, 2008, Judge Sim Lake for the Southern District of Texas signed a final judgment dismissing Gordon's complaints and remanding the portions of the action that were removed from the 405th Judicial District Court of Galveston County. The clerk of the federal court mailed a certified copy of the remand order to the Galveston County District Clerk on March 27, 2008, and it was received on March 31, 2008.
Gordon claims in his appellate brief that he filed a notice of appeal of the Southern District of Texas's final judgment on April 3, 2008, but this does not appear in the appellate record. Gordon also claims that on May 7, 2008, he requested that the 5th Circuit Court of Appeals remove Allen as an appellee, although this request is also not included in the appellate record. The record does contain a copy of the May 13, 2008 letter from the Fifth Circuit Court of Appeals clerk stating, "Pursuant to your letter dated 5/7/08, please be advised that appellee, Donald Allen, has been removed from this court's docket as an appellee."
On April 23, 2008, the 405th District Court of Galveston County ("the state trial court") issued an order denying Gordon's motion to reconsider its ruling in granting Allen's motion for summary judgment. On May 8, 2008, the state trial court issued its order of dismissal of Marvin and Doris Bennett and all defendants.
That order states:
The Court has reviewed this entire file along with Cause No. 97CV1156 and Cause No. 95CV0315, which are cases filed by [Gordon] in Galveston County Texas regarding the same subject matter as this suit. The only remaining defendants in this suit are Marvin and Doris Bennett. The Court finds that [Gordon's] claims against all the Defendants and, in particular, the remaining defendants have no arguable basis in law.
The state trial court then set out a time line tracing the complex procedural history of Gordon's various suits involving the property and taking judicial notice of several documents and orders and judgments from other courts, including Madison v. Gordon, 39 S.W.3d 604 (Tex. 2001), in which the Texas Supreme Court outlined the various transfers of the four-plex and held that Madison was the bona fide purchaser of the four-plex. The state trial court concluded that "any and all claims" by Gordon against the Bennetts and "all of the defendants" were barred by res judicata and the statute of limitations, that Gordon "has filed an affidavit of inability to pay pursuant to [Texas Rule of Civil Procedure 145]," and Gordon's claims against the Bennetts and "all of the Defendants have no arguable basis in law." This appeal followed.
District Court's Jurisdiction
In his first issue, Gordon argues that the state trial court did not have jurisdiction to take action on the case because all of the parties were still under federal jurisdiction. Gordon argues that the final judgment of the United States District Court for the Southern District of Texas remanding the cause to the state trial court "did not factor in [Gordon's appeal of] the final judgment rendered by the federal district court" and that, because of his appeal of the federal district court's final judgment, the state trial court lacked jurisdiction to issue the dismissal order.
This argument is without merit. The state trial court received notice of the federal court's remand order on March 31, 2008. A state court is free to proceed post-remand, even if the remand order has been appealed, unless a stay order has been issued. Gonzalez Guilbot v. Estate of Gonzalez y Vallejo, 267 S.W.3d 556, 560 (Tex. App.-Houston 2008, pet. granted); Drew v. Unauthorized Practice of Law Committee, 970 S.W.2d 152, 156 (Tex. App.-Austin 1998, pet. denied) (holding that state district court could proceed with case on remand from federal court notwithstanding that appeal of remand order was pending in circuit court of appeals because there is no automatic stay pending appeal in federal system and appellant did not request stay); see also 28 U.S.C. §§ 1447(c), (d) ("A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case."). No stay order was issued in this case.
The issues raised in the petition for review are not related to state court jurisdiction after remand. See Brief of Petitioners at xii, Maria del Carmen Guilbot Serros de Gonzales, individually and as independent administrator of the Estate of Miguel Angel Luis Gonzalez y Vallejo et al. v. Miguel Angel Gonzales Guilbot et al., No. 08-0961 (Tex. Aug. 5, 2009) (available at http://www.supreme.courts.state.tx.us/ebriefs /08/08096103.pdf).
We overrule Gordon's first issue.
Dismissal Order
In his second issue, Gordon argues that the trial court erred by rendering judgment and dismissing the case based on an order issued by another trial court.
To support this issue, Gordon cites rules and cases prohibiting a trial court from imposing sanctions to enforce an order of another trial court. However, Gordon misconstrues the dismissal order issued by the trial court. That order did not attempt to enforce another court's order by sanctioning Gordon. Therefore, this argument is without merit.
The only other argument Gordon makes in his appellate brief is that res judicata was not appropriate for his claims against Allen. Gordon does not attack in any way the trial court's grant of Allen's motion for summary judgment or the other grounds listed for dismissal of Gordon's claims against the Bennetts and "all defendants" — that the claims were barred by the statute of limitations and that they had no arguable basis in law."[A]n appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment." Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston 2002, no pet.). If an appellant does not assign any error to an independent ground that, if meritorious, would fully support the complained-of ruling or judgment, we must accept the validity of that unchallenged independent ground and affirm the ruling or judgment. Id. at 680-81 ("This rule is based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who does not challenge that error on appeal.") (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993)). Because Gordon did not attack other independent grounds that, if meritorious, would fully support the trial court's rulings, we accept the validity of the unchallenged independent grounds. See id.
In his reply brief, Gordon cites a case for the proposition that "in suits to clear title, injury from a cloud on the title to real estate continues; consequently, the cause of action for its removal continues and is never barred while the cloud exists." An issue raised for the first time in a reply brief is ordinarily waived and need not be considered by this Court. McAlester Fuel Co. v. Smith Int'l, Inc., 257 S.W.3d 732, 737 (Tex. App.-Houston 2007, pet. denied). Furthermore, Gordon does not give any argument or citation to the record or to other authority indicating how this reasoning applies to his claims against Allen. See TEX. R. APP. P. 38.1(i). We conclude that this issue was waived. Even if this argument were adequately presented for appellate review, it would not change our analysis of this case because there still remains one independent, unchallenged ground to support the trial court's judgment.
We overrule Gordon's second issue.
Conclusion
We affirm the judgment of the trial court.