Summary
waiving appellant's sole issue on appeal for inadequate briefing and not mentioning any opportunity to rebrief
Summary of this case from Eco Planet, LLC v. ANT TradingOpinion
No. 05-08-00442-CV
Opinion Filed July 6, 2009.
On Appeal from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 07-04144.
Before Justices MORRIS, RICHTER and LANG-MIERS.
MEMORANDUM OPINION
Appellant Kenneth Herrell appeals from a final judgment granting summary judgment in favor of appellee Allstate Insurance Company and dismissing Herrell's claims with prejudice. We affirm the trial court's judgment.
Factual and Procedural Background
Herrell filed a pro se "complaint" against Allstate alleging that he was a passenger on a DART bus that was hit from behind by a van insured by Allstate. Herrell sought to recover "liquidated damage" and "personal damages" from Allstate. In its answer, Allstate generally denied Herrell's allegations and specifically denied that Herrell was entitled to assert a cause of action directly against Allstate. Allstate moved for summary judgment on Herrell's claims and argued that it was entitled to summary judgment as a matter of law because "Texas law does not recognize a direct action by a claimant against the other driver's insurance company." Herrell filed a response to Allstate's motion for summary judgment, in which he argued that Allstate's motion should be denied because it "is bare of any summary judgment evidence." Allstate filed a supplemental motion for summary judgment, in which it argued that Herrell's recent responses to Allstate's requests for admissions, which were attached as summary judgment evidence to the supplemental motion, conclusively demonstrate that Herrell "was not insured by Allstate on the date of the accident that forms the basis of this lawsuit" and that his claims against Allstate "are based merely upon the fact that the motorist who collided with the DART bus on which [Herrell] was a passenger happened to be insured by Allstate." Three months later, the trial court considered Allstate's motion and signed an order granting summary judgment in favor of Allstate and dismissing Herrell's claims with prejudice. On the same afternoon that the trial court signed its order granting Allstate's motion and dismissing Herrell's claim, the trial court received and file-stamped Herrell's motion for leave to add four additional defendants: the van's driver, the van's owner, "Dart Bus," and the bus driver.
Herrell's motion for leave includes a deputy clerk's file stamp indicating that it was filed at 1:35 p.m. on Feburary 22, 2008. The trial court's case summary sheet indicates that the hearing on Allstate's motion for summary judgment was scheduled for 2:00 p.m. on Feburary 22, 2008. The record does not indicate whether the motion for leave was presented to the trial court.
Analysis
In his sole issue in this pro se appeal, Herrell does not attack the merits of Allstate's motion for summary judgment, nor does he contend that the trial court erred when it dismissed his claims against Allstate. Instead, he argues that the trial court erred in dismissing the suit without permitting him to add additional parties. In his appellate brief, Herrell states that he "sued Allstate Insurance Company in error" and that he "diligently sought to amend his claim to make the necessary corrections of the misjoinder of defendants to be sued in this cause of action." He argues that he should have been permitted to add additional defendants because, as he put it, "the law has made it that parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action." He also argues that "substitution of parties" "does not constitute a new suit for limitations purposes" and that the trial court should have allowed his claims to proceed against the new defendants because "the nature of the suit against the defendant's [sic] remains unchanged."
Herrell cites four cases in his brief, but he does not refer to the standard of review or discuss how any of those cases apply to the issue he has raised. Moreover, each of the cases he cites is materially distinguishable from the facts of this case. In the first case Herrell cites, Foust v. Estate of Walters, 21 S.W.3d 495 (Tex.App.-San Antonio 2000, pet. denied), the plaintiff amended the petition to change the name of the plaintiff after the trial court sustained the defendants' special exceptions in open court. The instant case does not involve special exceptions or changing the name of the plaintiff. In the second case Harrell cites, Braselton-Watson Builders, Inc. v. Burgess, 567 S.W.2d 24 (Tex.App.-Corpus Christi 1978, writ ref'd n.r.e.), and the fourth case Herrell cites, Callan v. Bartlett Electric Cooperative, Inc., 423 S.W.2d 149 (Tex.Civ.App.-Austin 1968, writ ref'd n.r.e.), the plaintiffs sued and served the correct defendant entities, but initially used the wrong legal names for those entities. This case does not involve a mistake in the legal name of an entity. In the third case Herrell cites, Grand Lodge A.O.U.W. of Texas v. Bollman, 53 S.W. 829 (Tex.Civ.App. 1899, writ ref'd), the plaintiffs misidentified the defendant as a corporation rather than a charitable organization, and the court held that pleadings could be amended to correct the legal characterization of a defendant "when they do not make another and different defendant." Id. at 832. This case does not involve a mistake in the legal characterization of a defendant. Rule 38.1(h) of the rules of appellate procedure requires an appellant to include in his brief a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). "Failure to make appropriate argument or provide relevant citations will result in the overruling of the issue raised." Siddiqui v. Siddiqui, No. 14-07-00235-CV, 2009 WL 508260, at *1 (Tex.App.-Houston [14th Dist.] Mar. 3, 2009, pet. filed). We construe pro se pleadings and briefs liberally, but a pro se litigant is still required to follow the same rules and laws as litigants represented by a licensed attorney. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex.App.-Dallas 2008, no pet.). Otherwise a pro se litigant would have an unfair advantage over a litigant represented by a licensed attorney. Mansfield State Bank, 573 S.W.2d at 185; Cooper, 254 S.W.3d at 693. Because Herrell does not analyze the cases he cites or explain how they support his specific contentions, he presents nothing for us to review. Consequently, after reviewing Herrell's brief, we conclude that his issue on appeal is inadequately briefed. Cf. Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex.App.-Dallas 2007, pet. denied) (issue inadequately briefed when party gives general cite to one case stating elements of cause of action); Brown Found. Repair Consulting Co., Inc., No. 05-99-00091-CV, 2000 WL 45891, at *6 (Tex.App.-Dallas Jan. 21, 2000, no pet.) (not designated for publication) (issue inadequately briefed when party cites only to former rule of civil procedure but does not analyze rule or explain how it applies to case).
Conclusion
We overrule Herrell's sole issue and affirm the trial court's judgment.