Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 96th District Court Tarrant County, Texas
Trial Court No. 096-283926-16
Bassel, Gabriel, and Kerr, JJ.
Marjorie Anderson, appearing pro se, appeals the trial
court's order granting summary judgment for Appellee
Safeway Tom Thumb d/b/a Tom Thumb Grocery and the trial
court's order granting the special appearance of Appellee
Bargreen Ellingson, Inc. In six issues, Anderson challenges
the factual sufficiency of the evidence and the trial
court's swearing her in to give testimony at the
special-appearance hearing, allegedly disregarding her
evidence, placing what she believed to be unfair restrictions
on her ability to present testimony and evidence, and
accepting testimony from Safeway's attorney that was
allegedly not supported by any evidence. Because we rule
against Anderson on each of her six issues, we affirm.
facts of the event at the heart of the underlying litigation
are not disputed. On February 19, 2014, Anderson went to the
Tom Thumb Grocery in Mansfield, Texas, and purchased a salad
from the delicatessen. Anderson sat down in a chair in the
dining area at the store. While Anderson was eating her
salad, she noticed a piece of cucumber on the floor near
where she was sitting and believed that it was possibly from
her salad. When Anderson reached down to pick up the
cucumber, the chair in which she had been sitting
"flipped out behind her, propelling and thrusting her
onto the . . . floor." Anderson landed on her bottom
with her legs extended in front of her.
filed suit against Safeway Tom Thumb, Bargreen Ellingson, and
J.H. Carr and Sons Manufacturing. Anderson alleged that all
three defendants were liable for gross negligence and that
Safeway was also liable, under the theory of premises
liability, for the personal injuries that she had sustained
in falling from the chair.
Ellingson filed an amended special appearance, arguing that
it is a Washington resident; that it is incorporated in
Washington and has its principal place of business in Tacoma,
Washington; that it does not have a registered agent for
service of process in Texas; and that it has not purposefully
availed itself of the privilege of doing business in Texas.
Bargreen Ellingson explained that Safeway had purchased the
subject chair through a purchase contract formed with
Bargreen Ellingson in California and that J.H. Carr and Sons
Manufacturing (also a Washington resident) had manufactured
the chair and had shipped it to the address provided by
Safeway. Anderson filed a response asserting that she would
establish that Bargreen Ellingson has a business location in
filed an amended answer that included a general denial and
asserted the affirmative defenses of "paid v.
incurred" and "contributory negligence/comparative
fault." Safeway later filed a traditional motion for
summary judgment. In its motion, Safeway stated that the
evidence attached to its motion- which included deemed
admissions and the store's video of Anderson's chair
incident-"conclusively negates the following elements of
[Anderson's] cause of action: (1) there was [an]
unreasonably dangerous condition on the premises; (2)
[Safeway] knew or reasonably should have known of the danger
posed by said condition; and [(3) Safeway] breached its duty
of ordinary care." Safeway further stated that Anderson
had failed to provide any answers, objections, or assertions
of privilege to Safeway's request for admissions even
though Safeway had implicitly extended the deadline to
respond to the admissions as Anderson had informally
requested. Safeway contended that because there was no
evidence of negligence, as shown by the store's video,
there could be no recovery for gross negligence.
filed a response to Safeway's summary-judgment motion
admitting that she did not respond to the request for
admissions by the June 13 date that she had requested but
claimed that she had emailed Safeway's counsel requesting
a five-day extension. Anderson did not attach any evidence to
her summary-judgment response.
trial court held a hearing on Bargreen Ellingson's
amended special appearance on August 17, 2016, and granted
the special appearance in a signed order dated August 23,
2016, thus dismissing Anderson's claims against Bargreen
Ellingson for lack of personal jurisdiction. The trial court
held a separate hearing on Safeway's motion for
traditional summary judgment on August 25, 2016, and granted
the motion in a signed order dated August 26, 2016.
September 8, 2016, Anderson filed a "Motion for
Rehearing and New Trial" pertaining to each of the trial
court's orders. Because Anderson did not request a hearing
on her post-judgment motion or take any other action, the
trial court sent a letter ten months later stating that the
case would be set for dismissal for want of prosecution
unless the trial court received a motion to retain the case
on the docket. Anderson timely field a motion to retain
the case on the docket, which the trial court granted. A
hearing on Anderson's "Motion for Rehearing and New
Trial" was set for January 5, 2018, but Anderson did not
appear. The trial court signed an order denying
Anderson's motion as to Safeway. Anderson then perfected
Anderson's Issues on Appeal
sets forth the following six issues under the "Issues
Presented" heading in her brief:
1. Did the district court err in placing Plaintiff/Appellant
Pro Se in the witness stand and having her sworn in (Party to
case, Defendant Bargreen Ellingson's Special Appearance
on or about August 17, 2016)?
Was Appellant Pro Se denied due process per the 5th and 14th
Amendment[s] of the U.S. Constitution?
2. Did the district court err in disregarding critical
evidence presented during the hearings?
3. Did the district court err in not allowing
Plaintiff/Appellant Pro Se to present documents after the
court asked plaintiff if she had them in the courtroom?
4. Did the district court err in not allowing Plaintiff/Pro
Se sufficient time to complete her oral statements?
5. Is there factually sufficient evidence to support the
judgments of the district Court?
6. Did the district court err in accepting
Appellee/Defendant's, Safeway Tom Thumb, allegations and
testimony, and vague language and descriptions that were not
supported by evidence?
"Summary Of Argument" section makes multiple
arguments, only one of which is analyzed in the
"Argument" section of her brief. Her
"Argument" section consists of approximately one
and a half pages and appears to address only her sixth issue.
Anderson's brief contains citations to two cases and to
one rule of civil procedure.
Standard for Pro Se Litigants
we liberally construe pro se briefs, litigants who represent
themselves are held to the same standards as litigants
represented by counsel. See Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). To hold
otherwise would give pro se litigants an unfair advantage
over litigants with an attorney. Id. at 185. The
Texas Rules of Appellate Procedure require that a brief
"contain a clear and concise argument for the
contentions made, with appropriate citations to authorities
and to the record." Tex.R.App.P. 38.1(i); ERI
Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867,
880 (Tex. 2010) (recognizing that "[t]he Texas Rules of
Appellate Procedure require adequate briefing"). The
appellate court has no duty to brief issues for an appellant.
Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas
2006, no pet.). In the absence of appropriate record
citations or a substantive analysis, a brief does not present
an adequate appellate issue. See generally Fredonia State
Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85
(Tex. 1994) (recognizing long-standing rule that error may be
waived due to inadequate briefing). An appellant must discuss
the facts and the authorities relied upon as may be requisite
to maintain the point at issue. Tesoro Petroleum 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.
Construing Anderson's First, Third, and Fourth
Anderson does not identify any of her arguments in her
"Summary Of Argument" section to reflect what issue
or issues they correspond to, we reference the paragraph
order and attempt to identify the corresponding issue.
First Paragraph Appears to Correspond to Anderson's First
first paragraph of the "Summary Of Argument"
section of Anderson's first amended brief, she argues
that the trial court erred by placing her on the witness
stand and by having her sworn in during the hearing on
Bargreen Ellingson's special appearance. Anderson further
argues that Bargreen Ellingson's counsel was not called
to the witness stand and was allowed to cross-examine
Anderson contends that she "was prejudiced by the
court's decision" and that she "was confused
and misled as to what courtroom procedure(s) she might
encounter in future hearings, which caused her to place less
focus and emphasis on important specific issues that she
needed to confront in this case and to attempt to be prepared
to address/defend all."
cites no law to support her four-sentence argument, which
appears to correspond to her first issue. Based on
Anderson's limited, unsupported argument, we cannot see
how the trial court's actions ran afoul of Texas Rule of
Civil Procedure 120a(3), which governs special-appearance
hearings and allows the trial court to hear testimony.
See Tex. R. Civ. P. 120a(3); see also Cohn,
573 S.W.2d at 184-85. Accordingly, we overrule Anderson's
Second Paragraph Appears to Correspond to Anderson's
second paragraph of the "Summary Of Argument"
section of Anderson's first amended brief, she argues
that the trial court erred by excluding and failing to
consider critical evidence that she had brought with her to
the hearing and by not allowing her sufficient time to
respond. Anderson further argues that the exclusion of her
evidence is so contradictory to the rulings established by
the Texas Supreme Court in Miller v. Wilson and
Brown v. Davis as to be clearly wrong and
argument complaining of unidentified excluded
evidence at an unidentified hearing appears to correspond to
her third issue.
does not identify the hearing-either the hearing on Bargreen
Ellingson's special appearance that took place on August
17, 2016, or the hearing on Safeway's summary-judgment
motion that took place on August 25, 2016-at which her
evidence was excluded, nor does she identify what
"critical evidence" was excluded. Our review of the
records from the two hearings reveals that Anderson was
allowed to present evidence during the hearing on Bargreen
Ellingson's special appearance but not during the
summary-judgment hearing. To the extent that Anderson's
third issue complains that she was not allowed sufficient
time to testify at the special-appearance hearing, the record
demonstrates that after she presented her exhibits and made
an offer of proof as to what various people had told her, the
trial court asked her if she had anything else that she
wanted to say, and she responded, "That is all I have
right now." To the extent that Anderson's third
issue complains that she was not allowed to put on testimony
or introduce evidence at the summary-judgment hearing, she
was prohibited from doing so because testimony at a
summary-judgment hearing is not evidence, she did not attach
any evidence to her summary-judgment response, and she did
not filed any evidence seven days prior to the hearing.
See Tex. R. Civ. P. 166a(c), (d). We therefore
overrule Anderson's third issue.
Third Paragraph Appears to Correspond to Anderson's
third paragraph of the "Summary Of Argument"
section of Anderson's first amended brief, she argues
that "[t]he court erred by instructing Mr. Dunne,
Defendant Bargreen Ellingson, Inc.['s counsel] to 'go
ahead and proceed however you wish.' Appellee/Plaintiff
believes the court erred by telling her 'you can proceed,
just in a narrative form to tell me-give me your testimony
and offer your exhibits.'" [Record references
omitted.] Anderson's two-sentence argument appears to
correspond to her fourth issue, arguing that the trial court
did not allow her sufficient time to complete her oral
statements. Because Anderson did not explain how these two
statements constitute error, did not cite any law to support
her argument, and did not provide any analysis showing how
she was harmed, we conclude that she has waived her fourth
issue due to inadequate briefing,  and we overrule it. See
Fredonia State Bank, 881 S.W.2d at 284-85; see
also Tex. R. Evid. 611 (providing that trial court may
exercise reasonable control over the ...