Derrick A. Walker v. D. D'Lyn Davison and B. Gregg Price ( 2019 )

Opinion issued February 26, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00431-CV
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DERRICK A. WALKER, Appellant
V.
D. D’LYN DAVISON, Appellee
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court Case No. 188,018-C
MEMORANDUM OPINION
Derrick Walker, proceeding pro se, brought this suit against attorney Gregg
Price and Price’s attorney, D’Lyn Davison. In an earlier suit separate from this one,
Walker had sued Price for allegedly breaching an agreement to represent him in a
personal-injury matter. Davison represented Price in that suit. According to Walker,
during trial in that suit, Price allegedly perjured himself, and Davison allegedly
suborned the perjurious testimony. Walker then initiated this suit against both Price
and Davison in Wichita County district court.1 After Davison answered and before
Price was served with process, the district court dismissed this suit for being
frivolous or malicious.2
Walker appeals the dismissal as to Price but concedes the dismissal as to
Davison. Because of deficiencies in his appellant’s brief, Walker has failed to
preserve his issues for appellate review. We therefore affirm.
Background
Walker contacted Price, seeking legal representation after a car wreck. The
record is unclear about what happened next, but Walker later sued Price for allegedly
breaching an agreement to represent Walker. Davison represented Price in Walker’s
suit.
Walker represents to us that an appeal in that suit is still ongoing.
Nevertheless, Walker filed a separate suit—this suit—against both Price and
1
Pursuant to the Supreme Court of Texas’s docket-equalization powers, this
appeal was transferred from the Second Court of Appeals to this court on May
30, 2018. See TEX. GOV’T CODE §§ 73.001–.002; Order Regarding Transfer
of Cases from Courts of Appeals, Misc. Docket No. 18-9049 (Tex. Mar. 27,
2018). We are unaware of any conflict between precedent of the Second Court
of Appeals and that of this court on any relevant issue. See TEX. R. APP.
P. 41.3.
2
See TEX. CIV. PRAC. & REM. CODE § 13.001.
2
Davison, alleging that Price perjured himself in the prior suit and that Davison
suborned the perjurious testimony. He filed this suit in Wichita County district court,
along with an affidavit of indigency, which no one has challenged. See TEX. R. CIV.
P. 145.
Davison was served with process and answered the suit and moved for
dismissal, contending that the action against her is frivolous and malicious. See TEX.
CIV. PRAC. & REM. CODE § 13.001. Then, before Price was served, the district court
reviewed the case file. Noting that Walker had filed an affidavit of indigency, it
found that Walker’s suit was frivolous or malicious and dismissed the suit under
Civil Practice and Remedies Code section 13.001. The dismissal disposed of all
claims, including those against Price.3
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“An action may be dismissed under Subsection (a) as frivolous or malicious
either before or after service of process.” TEX. CIV. PRAC. & REM. CODE
§ 13.001(c). Determining whether an action is frivolous or malicious
generally turns on whether the plaintiff’s “claim has no arguable basis in law
or in fact.” See id. § 13.001(b)(2); McDonald v. Houston Dairy, 813 S.W.2d
238, 239 (Tex. App.—Houston [1st Dist.] 1991, no writ).
If a section 13.001 dismissal is one for lack of an arguable basis in fact, then
the trial court should generally hold an evidentiary hearing. See Johnson v.
Franco, 893 S.W.2d 302, 303 (Tex. App.—Houston [1st Dist.] 1995, writ
dism’d w.o.j.); Hector v. Thaler, 862 S.W.2d 176, 178 (Tex. App.—Houston
[1st Dist.] 1993, no writ). Without a hearing, a trial court generally cannot
determine that a claim has no arguable basis in fact. McDonald, 813 S.W.2d
at 239.
On the other hand, a dismissal for a lack of “any arguable basis in law” may
be reversed if the trial court has misapplied the law. See id. (emphasis added).
When applying the law to the plaintiff’s petition, courts should accept “all of
3
Walker requested findings of fact and conclusions of law, but the record does
not reflect that the trial court ever entered any. The record does not contain any
notice of past-due findings filed by Walker. See TEX. R. CIV. P. 297. This appeal
followed.
Analysis
On appeal, Walker complains of the dismissal as to Price, but he concedes
Davison’s dismissal. His brief, however, fails to challenge the dismissal with
citations to the record and to relevant authorities.
Adequate briefing includes proper citation to the record and to authorities. See
1901 NW 28th St. Tr. v. Lillian Wilson, LLC, 535 S.W.3d 96, 102 (Tex. App.—Fort
Worth 2017, no pet.); Afshang v. Mortazavi, No. 01-16-00171-CV, 2017 WL
711743, at *2 (Tex. App.—Houston [1st Dist.] Feb. 23, 2017, no pet.) (mem. op.).
Rule of Appellate Procedure 38.1(i) requires that an appellant’s brief “contain a clear
and concise argument for the contentions made, with appropriate citations to
the facts as set forth in [the plaintiff]’s petition and exhibits as true.” See
Velasquez v. Austin Colony Apartments, No. 01-96-00483-CV, 1998 WL
658567, at *2 (Tex. App.—Houston [1st Dist.] Sept. 24, 1998, no pet.) (not
designated for publication).
Determining frivolousness or malice, then, may not always be a simple
undertaking. We therefore caution trial courts not to move too quickly in
dismissing actions under Section 13.001. We do not reach the merits of the
issue in this appeal, however, because of deficiencies in Walker’s appellant’s
brief. See TEX. R. APP. P. 47.1.
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authorities and to the record.” To fulfill these requirements, the appellant must
“provide us with such discussion of the facts and the authorities relied upon as may
be requisite to maintain the point at issue.” Morrill v. Cisek, 226 S.W.3d 545, 548
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Tesoro Petrol. Corp. v.
Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.]
2002, pet. denied)). “This is not done by merely uttering brief conclusory statements,
unsupported by legal citations.” Id. (quoting Tesoro Petrol., 106 S.W.3d at 128).
An appellant should explain how the law in the cited authorities applies to the
material facts in the record and supports his or her arguments on appeal. Tyurin v.
Hirsch & Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191, at *1 (Tex.
App.—Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.) (per curiam); see also
Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 363 (Tex. App.—Fort
Worth 2018, pet. denied) (“Appellants include no record references to support these
factual assertions and do not present cogent argument explaining how the trial
court’s denial exceeded the bounds of reasonable discretion as an unreasonable or
arbitrary determination.”) (citing Rule 38.1). When an appellant fails to comply with
Rule 38.1, it is not this court’s duty to research the law that may support the
appellant’s contentions or review the record for facts to support them. Tyurin, 2017
WL 4682191, at *1; Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931–
32 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
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Although we interpret Rule 38.1’s requirements liberally, see Republic
Underwriters Insurance Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004), a
brief that does not contain any citations to authorities or to the record for a given
issue waives that issue. Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237,
241–42 (Tex. App.—Houston [1st Dist.] 2006, no pet.); accord Afshang, 2017 WL
711743, at *2.
Litigants appearing on their own behalf are held to the same standards as
licensed attorneys and must comply with all applicable laws and rules of procedure.
See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Kanow v.
Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1985, no writ).
A pro se litigant must properly present his or her case on appeal, and we may not
apply different standards for litigants appearing without the advice of counsel. See
Morris v. Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—
Houston [1st Dist.] 2011, no pet.); accord Afshang, 2017 WL 711743, at *2.
Walker’s appellant’s brief does not present any legal authorities or citations
to the record to support his contentions. We therefore hold that his appellate issues
are waived. See Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex. App.—
Houston [1st Dist.] 2000, no pet.); accord Afshang, 2017 WL 711743, at *2.
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Conclusion
Walker has waived any complaint of error. We therefore affirm the judgment
of the trial court.
Gordon Goodman
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
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