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Buholtz v. Gibbs

Court of Appeals of Texas, Fifth District, Dallas

August 21, 2019


          On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-01275-2016

          Before Justices Bridges, Brown, and Nowell



         Pro se appellant Kenneth Leo Buholtz appeals the trial court's orders granting appellees Gregg Gibbs's and Charles Philips's dismissal motions and the summary judgment motion of appellee Philmoore Management, LLC (Philmoore). In seven issues, Buholtz complains the trial court erred in (1) dismissing his claims against Gibbs and Philips, (2) granting summary judgment in favor of Philmoore, (3) issuing a final and appealable order without having ruled on a fraud counterclaim, (4) granting protective orders barring further discovery and proceedings, and (5) refusing to consider and/or grant motions, including motions for telephonic appearances. For the following reasons, we (1) affirm the trial court's orders dismissing Buholtz's claims against Gibbs and Phillips, (2) affirm the trial court's order granting summary judgment in favor of Philmoore on its suit on a sworn account, and (3) reverse the trial court's order granting summary judgment in favor of Philmoore to the extent it grants summary judgment on Buholtz's fraud counterclaim and remand the case for further proceedings consistent with this opinion.


         In June 2016, Buholtz sued Gibbs and Philips for legal malpractice allegedly arising from Gibbs's representation of Buholtz in a divorce and criminal action and Philips's representation of Buholtz in the divorce action. Philmoore, assignee of the accounts previously held by the law firm that employed Philips, intervened and filed an original petition for suit on sworn account seeking $17, 250.24 in unpaid fees billed to Buholtz for legal services. In response, Buholtz raised a counterclaim asserting the "past-due notice" forming the basis of Philmoore's suit was fraudulent.

         Gibbs and Philips separately filed Rule 91a motions to dismiss Buholtz's claims against them. Buholtz filed a motion for telephonic hearing, which the trial court granted.[1] On August 12, 2016, the trial court entered orders dismissing Buholtz's causes of action against Gibbs and Philips with prejudice.[2] Buholtz appealed the dismissal orders, but the Sixth District Court of Appeals[3] dismissed the appeal for lack of jurisdiction because, although the orders stated the "cause number" was "dismissed, with prejudice," both Philmoore's suit on sworn account and Buholtz's counterclaim against Philmoore remained pending and, therefore, the dismissal orders were not final, appealable orders. See Buholtz v. Gibbs, No. 06-16-0068-CV, 2017 WL 6887292 (Tex. App.-Texarkana Jun. 2, 2017, no pet.).

         Back in the trial court, Philmoore moved for summary judgment on its suit on sworn account, and the trial court set a hearing date of March 15, 2018. Buholtz filed a motion for continuance and motion for telephonic appearance. The trial court granted a continuance until April 26, 2018, but denied Buholtz's motion for telephonic appearance and advised it would decide the matter on submission. The trial court subsequently entered an order granting Philmoore's summary judgment motion, and Buholtz filed this appeal.

         Improper Briefing

         A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont'l Casualty Co., 126 S.W.3d 676, 677-78 (Tex. App.-Dallas 2004, pet. denied). And, as at trial, a pro se appellant must properly present his case on appeal. Id. at 678. Among other things, an appellant's brief must contain a Statement of Facts supported by record references and "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(g), (i); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.-Dallas 2010, no pet.) An appellant waives error if he does not provide appropriate citation to authority or the record. Dallas Indep. Sch. Dist., v. Finlan, 27 S.W.3d 220, 237 (Tex. App.-Dallas 2000, pet. denied).

         Buholtz filed a brief that did not contain citations to the record and, thus, was not in compliance with the rules of appellate procedure. By order, we notified him the brief was deficient and instructed him to file an amended brief with appropriate citations to the clerk's record and that otherwise complied with Texas Rule of Appellate Procedure 38.1. See Tex. R. App. P. 38.1. Buholtz filed an amended brief, which includes some references to the clerk's record in the Statement of the Case and Issues Presented sections. The amended brief's Statement of Facts and Arguments section, however, contain no citations to the clerk's record. And, although the amended brief cites to some legal authority on the elements of his malpractice claims, it cites no legal authority to support the particular arguments he raises in this appeal.

         The clerk's record contains more than 700 pages. As appellant, Buholtz has the burden to show reversible error, and this Court has no responsibility to search a voluminous record for facts that may be favorable to his position. Bolling, 315 S.W.3d at 895; Finlan, 27 S.W.3d at 237. Because Buholtz's amended brief is unsupported by appropriate citations to the record and authority, he has preserved nothing for our review. See Tex. R. App. P. 38.1(g), (i); Finlan, 27 S.W.3d at 237. Nevertheless, we will consider his issues individually to the extent possible.

         Gibbs's Motion to Dismiss

         In his first issue, Buholtz contends the trial court erred in dismissing his claim against Gibbs because the trial court did not allow a continuance so it could consider his "Opposition in Response to Gibbs' Motion to Dismiss"[4] In support of his issue, Buholtz "re-assert[ed] his arguments from the Original Petition," recounting facts, without any citations to the clerk's record, related to Gibbs's representation of Buholtz.

         Under Texas Rule of Civil Procedure 251, "[n]o application for a continuance shall . . . be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex.R.Civ.P. 251. We review a trial court's ruling on a motion for continuance for abuse of discretion. See BMC Software Belg., N.W. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). We will not reverse the trial court's decision unless it acted unreasonably or arbitrarily "without ...

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