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Lipscomb v. Dallas

Court of Appeals of Texas, Fifth District, Dallas

January 24, 2018

JEFFREY A. LIPSCOMB, Appellant
v.
CITY OF DALLAS, Appellee

         On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-16-01756-A

          Before Justices Bridges, Myers, and Schenck

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         Jeffrey A. Lipscomb appeals the dismissal of his case for want of subject-matter jurisdiction based on the City's plea to the jurisdiction. Appellant brings one issue on appeal that appears to assert the trial court erred by granting the City's motion for continuance and by not holding a hearing on the merits of appellant's case. We affirm the trial court's judgment.

         Appellant is pro se before this Court. We liberally construe pro se pleadings and briefs. Washington v. Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.-Dallas 2012, no pet.). However, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Washington, 362 S.W.3d at 854. To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex. App.-San Antonio 1999, pet. denied).

         Liberally construing appellant's pleadings, he appears to allege in his original petition that he was falsely arrested and taken to a hospital against his will and that City employees stole his property. Appellant requested damages of $11 million and payment of his medical expenses. The original petition purported to sue the Dallas Police Department. The City moved to dismiss, asserting the police department was not a jural entity subject to suit. Appellant then filed amended and supplemental petitions suing the City instead of the police department. The City filed a plea to the jurisdiction asserting its governmental immunity was not waived for appellant's claims of false arrest and theft. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (West 2011) (Tort Claims Act's waiver of immunity "does not apply to a claim . . . arising out of assault, battery, false imprisonment, or any other intentional tort . . ."). The City also filed a motion for continuance requesting the trial date be postponed so the trial court would have time to rule on the plea to the jurisdiction before trial. The trial court granted the motion for continuance. The trial court held a hearing on the plea to the jurisdiction, but appellant did not attend the hearing. The trial court and the attorney for the City described the steps they took to locate appellant and to notify him of the hearing date. The trial court granted the plea to the jurisdiction and dismissed the suit.

         Appellant timely filed a notice of appeal. However, appellant's brief fails to comply with the rules of appellate procedure. See Tex. R. App. P. 9.4(d), (e), (i); id. 38.1(c), (d), (f), (g), (h), (i), (j), (k). This Court sent appellant a letter notifying him of these defects and requesting that he file an amended brief that complied with the Rules of Appellate Procedure. The letter warned appellant that the failure to file a brief that complied with the Rules of Appellate Procedure could result in dismissal of his appeal. Appellant did not file an amended brief.

          Besides the above defects, appellant's brief contains no cognizable argument pertaining to the proceedings in the trial court. Construed liberally, appellant's issue on appeal appears to complain of the trial court's granting the City's motion for continuance and the failure to hold a hearing on the merits of his petition.[1] However, the argument section of appellant's brief does not appear to address whether the trial court abused its discretion by granting the motion for continuance. Appellant was not entitled to a hearing on the merits of his suit unless the trial court had subject-matter jurisdiction over the suit. See RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 429 (Tex. 2016) ("[A]bsent jurisdiction, a court cannot address the merits of a case."). We apply an abuse-of-discretion standard to review a trial court's decision to grant a motion for continuance. Vitol, Inc. v. Harris Cnty. Appraisal Dist., 529 S.W.3d 159, 176 (Tex. App.-Houston [14th Dist.] 2017, no pet.).

         Appellant's argument does not address the City's plea to the jurisdiction and does not demonstrate that the trial court abused its discretion by granting the plea to the jurisdiction.[2]Therefore, appellant has not shown the trial court erred by not holding a hearing on the merits of his suit. We overrule appellant's issue on appeal.

         We affirm the trial court's judgment.

         LANA MYERS JUSTICE

          JUDGMENT

         In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

         It is ORDERED that appellee CITY OF DALLAS recover its costs of this appeal ...


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