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Anderson v. Thumb

Court of Appeals of Texas, Second District, Fort Worth

May 23, 2019

Marjorie Anderson, Appellant
v.
Safeway Tom Thumb, d/b/a Tom Thumb Grocery, and Bargreen Ellingson, Inc., Appellees

          On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-283926-16

          Before Bassel, Gabriel, and Kerr, JJ.

          MEMORANDUM OPINION

          PER CURIAM.

         I. Introduction

         Appellant 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.

         II. Factual Background

         The 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.

         III. Procedural Background

         Anderson filed suit against Safeway Tom Thumb, Bargreen Ellingson, and J.H. Carr and Sons Manufacturing.[1] 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.

         Bargreen 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 Fort Worth.

         Safeway 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.

         Anderson 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.

         The 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.

          On September 8, 2016, Anderson filed a "Motion for Rehearing and New Trial" pertaining to each of the trial court's orders.[2] 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.[3] 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 this appeal.

         IV. Anderson's Issues on Appeal

         Anderson 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?

         Anderson's "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.

         A. Standard for Pro Se Litigants

         Although 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.

         B. Construing Anderson's First, Third, and Fourth Issues

         Because 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.

         The First Paragraph Appears to Correspond to Anderson's First Issue

         In the 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.[4] Anderson further argues that Bargreen Ellingson's counsel was not called to the witness stand and was allowed to cross-examine her.[5] 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."

         Anderson 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 first issue.

         The Second Paragraph Appears to Correspond to Anderson's Third Issue

         In the 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 unjust.[6]Anderson's two-sentence argument[7] complaining of unidentified excluded evidence at an unidentified hearing appears to correspond to her third issue.

         Anderson 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[8] 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.

         The Third Paragraph Appears to Correspond to Anderson's Fourth Issue

         In the 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, [9] 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 ...


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