Opinion
NO. 01-19-00922-CV
04-29-2021
STELLA D. SALMERON, Appellant v. DELL, INC., Appellee
On Appeal from the County Civil Court at Law No. 1 Harris County, Texas
Trial Court Case No. 1138976
MEMORANDUM OPINION
Appellant Stella D. Salmeron, proceeding pro se, challenges a county court at law's order granting summary judgment in favor of appellee Dell, Inc. and dismissing her claims with prejudice. In her sole issue, Salmeron contends that county court at law lacked jurisdiction to dismiss her claims because the county court failed to provide her with an interpreter.
We affirm.
Background
On February 16, 2018, Salmeron filed suit against Dell in justice court seeking to recover for "damage to property," negligence, and violations of the Deceptive Trade Practices Act. In response, Dell filed special exceptions arguing that Salmeron's petition failed to allege any facts about the transaction or incident giving rise to the lawsuit and that the justice court should require her to replead. On May 25, 2018, the justice court granted Dell's special exceptions and ordered Salmeron to replead "her claim to comply with the 'fair notice' standards and identify the elements of [her] causes of action" within thirty days of the order or her claims would be dismissed with prejudice.
Salmeron did not amend her petition. A year later, on May 29, 2019, the justice court sent the parties a "Notice of Intent to Dismiss for Want of Prosecution," notifying them that the court intended to dismiss the action following a hearing on July 12, 2019, unless "good cause is shown for the case to be maintained on the docket." On July 11, 2019, Salmeron moved for a continuance of the dismissal hearing, stating she was "not prepared for the moment physically, mentally and economically" and requesting an additional thirty to ninety days. On July 12, 2019, the justice court held a hearing and dismissed the case for lack of prosecution.
On July 22, 2019, Salmeron moved to reinstate the case, stating that her husband was in an accident and that she was "emotional" and "fe[lt] bad." The justice court denied the motion to reinstate, and Salmeron appealed to the county court at law.
Following Salmeron's appeal to county court, on September 24, 2019, Dell moved for summary judgment or, in the alternative, for dismissal for want of prosecution, arguing that Salmeron's original petition "failed to allege any facts or description of the causes of action asserted against Dell," and that she "failed to cure her defective petition and made no effort to prosecute her claims." A hearing was set on Dell's motion for summary judgment on October 16, 2019. The day of the hearing Salmeron filed a first amended petition, purporting to add her husband as a plaintiff, and including additional factual allegations to support her causes of action. Following the hearing, the county court granted Dell's motion for summary judgment and dismissed Salmeron's claims against Dell with prejudice. This appeal followed.
Jurisdiction
In her sole issue, Salmeron argues that the county court lacked jurisdiction to dismiss her claims because the court failed to provide her an interpreter. For two reasons, we disagree.
First, Salmeron waived this argument by failing to make it to the county court. Although jurisdictional arguments may be raised for the first time on appeal, Salmeron cites no authority to support her argument that the county court's failure to provide her with an interpreter deprived the court of jurisdiction to dismiss her claims. Furthermore, both this Court and the Fourteenth Court of Appeals have previously considered this same argument raised by Salmeron (or her husband) in other cases and concluded that it is properly addressed as a due process challenge, rather than a jurisdictional one. See Salmeron v. T-Mobile W. Corp., No. 14-07-00524-CV, 2009 WL 396212, at *1 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.) ("Appellant's complaint that the county court erred by failing to provide an interpreter under Rule 183 is properly addressed as a due process challenge, rather than a jurisdictional one."); Salmeron v. T-Mobile W. Corp., No. 01-07-00532-CV, 2008 WL 1828616, at *1 n.3 (Tex. App.—Houston [1st Dist.] Apr. 24, 2008, no pet.) (mem. op.) (characterizing identical argument as due process challenge); see also Martinez v. Cherry Ave. Mobile Home Park, 134 S.W.3d 246, 249-50 (Tex. App.—Amarillo 2003, no pet.) (addressing failure to provide interpreter under Texas Rule of Civil Procedure 183 as due process challenge).
Thus, we construe Salmeron's argument to be a due process challenge. To preserve a complaint for review, the record must show that Salmeron made the request or complaint to the county court in a timely manner, and that the county court either ruled on the request or refused to do so. See TEX. R. APP. P. 33.1(a). Even constitutional complaints, including allegations of due process violations, must be raised below or they are not preserved for appellate review. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003).
Here, Salmeron does not direct us to any reference in the record where she requested that the county court provide her an interpreter, filed a motion requesting an interpreter, objected to the proceedings because she was unable to understand English or the proceedings without the aid of an interpreter, or objected to the county court's failure to provide her with an interpreter. We note that Salmeron's pro se status does not relieve her from the preservation-of-error requirements applicable to licensed attorneys. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (stating "pro se litigants are not exempt from the rules of procedure"); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) ("There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves."). Salmeron points us to no evidence showing that she preserved her complaint regarding the county court's failure to appoint an interpreter through a timely request, objection, or motion. See Salmeron, 2009 WL 396212, at *1 (holding appellant waived argument that county court's failure to appoint interpreter deprived court of jurisdiction to dismiss appeal because appellant did not make timely request, objection, or motion); Martinez, 134 S.W.3d at 249-50 (holding appellant waived argument that trial court denied him due process by failing to appoint interpreter because appellant did "not cite us to any reference in the record where a motion for the appointment of an interpreter was presented to the trial court, or where any complaint about the trial court's failure to appoint an interpreter was preserved for our review").
We acknowledge that Salmeron attached a "Post-Judgment Motion" as "Exhibit A" to her brief on appeal. In that Post-Judgment Motion, which reflects a file stamp from November 15, 2019, she states that the county court "abused its discretion to denied to speak and present my case because I do not speak English or the right to request an interpreter or the right to hire attorney violated The Plaintiff's constitutional and statutory rights; is potential error it's caused the rendition of an improper judgment." Though Salmeron attached this document to her brief, she failed to include it in the record on appeal and, therefore, we are unable to consider it. See Dauz v. Valdez, 571 S.W.3d 795, 811 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (concluding that because appellate court could not consider documents outside record, court would not consider summary judgment briefing included in appendix to appellant's brief but not in record on appeal); see also Enter. Leasing Co. of Hous. v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam) (appellant bears burden to bring forward appellate record that enables appellate court to determine whether appellant is entitled to relief); Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (stating that burden is on appellant to present sufficient record to show error requiring reversal). We also note that to the extent that any objection was made at the hearing on Dell's motion for summary judgment, there is nothing to suggest that the hearing was transcribed or, if it was, that a reporter's record from that hearing was requested by Salmeron. See Enter. Leasing Co. of Hous., 156 S.W.3d at 549; Christiansen, 782 S.W.2d at 843. Even if we could consider this post-judgment motion, she has made no argument as to how her constitutional rights were violated by the county court when she did not request an interpreter, nor has she cited to any legal authorities supporting an argument that the county court had a duty to sua sponte appoint one. See TEX. R. APP. P. 38.1(i) (appellant's brief must contain "clear and concise argument for contentions made, with appropriate citations to authorities and to the record").
Second, to the extent that she is arguing that the county court had a duty to appoint an interpreter sua sponte, Salmeron provides no authority for this contention. Moreover, Texas rules and statutes relating to the appointment of interpreters are permissive when no motion is filed. See, e.g., TEX. R. CIV. P. 183 ("The court may appoint an interpreter of its own selection[.]") (emphasis added); TEX. GOV'T CODE § 57.002(a) ("A court shall appoint a certified court interpreter . . . for an individual who can hear but does not comprehend or communicate in English if a motion for the appointment of an interpreter or provider is filed by a party[.]") (emphasis added); id. § 57.002(b) ("A court may, on its own motion, appoint . . . a licensed court interpreter for an individual who can hear but does not comprehend or communicate in English.") (emphasis added); see also TEX. GOV'T CODE § 311.016(1) (when used in statute, term "may" indicates provision is discretionary, not mandatory); Cheng v. Wang, 315 S.W.3d 668, 672 (Tex. App.—Dallas 2010, no pet.) (rejecting argument that trial court had duty to appoint interpreter sua sponte and interpreting above rules and statutes as permitting, but not requiring, court to appoint interpreter).
And as explained above, there is no evidence that Salmeron ever requested an interpreter. Nor is there evidence that she needed one. To the contrary, Salmeron's original petition in justice court was handwritten in legible English. Salmeron also filed numerous motions and filings in the justice court in legible English, including a response to Dell's motion to dismiss and special exceptions, as well as requests for production to Dell. In addition, she has filed an appellate brief with this Court in legible English, demonstrating her ability to understand and comply with the Rules of Appellate Procedure. Accordingly, we conclude that the county court had no duty to sua sponte appoint an interpreter in this case. See Salmeron, 2009 WL 396212, at *2 (holding that court had no duty to appoint interpreter sua sponte because appellant never requested interpreter and no evidence in record suggested appellant needed one because filings in trial court and on appeal were in legible English); see also Martinez, 134 S.W.3d at 249 (rejecting argument that trial court erred in failing to appoint interpreter because "[p]ublic policy . . . demands a judge try a case with absolute impartiality, and not act as an advocate for any party").
In conclusion, we hold that Salmeron waived her contention that the county court erred by failing to provide her with an interpreter, and that the county court had no duty to appoint an interpreter sua sponte. We overrule Salmeron's sole issue.
Conclusion
We affirm the judgment of the county court.
Amparo Guerra
Justice Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.