File: 061328F - From documents transmitted: 11/20/2007
AFFIRM and Opinion Filed November 20, 2007



In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01328-CV
............................
WALTER MITCHELL, Appellant
V.
CARLA BERRY, NORRIS BOOTH, BRAD NATHAN WALKER,
MARIA ALICIA GARCIA, JOHN DOE AND THE CITY OF DALLAS, Appellees
.............................................................
On Appeal from the 14th District Court
Dallas County, Texas
Trial Court Cause No. 05-11439-A
.............................................................
MEMORANDUM OPINION
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice FitzGerald
        Walter Mitchell appeals the dismissal of his suit against Carla Berry, Norris Booth, Brad Nathan Walker, Maria Alicia Garcia, John Doe, and the City of Dallas under section 13.001 of the Texas Civil Practice and Remedies Code. Appellant brings thirty issues on appeal. We affirm the trial court's judgment.
BACKGROUND
        In bringing this lawsuit, appellant filed an affidavit of inability to pay costs under rule of civil procedure 145. See Tex. R. Civ. P. 145. In his affidavit, appellant stated he owned no real estate.         Appellant sued the City and Berry, a code-compliance officer for the City, on November 10, 2005. Appellant alleged that on October 7, 2005, Berry oversaw the towing of appellant's 1952 pickup truck as a code violation. Appellant sought a temporary restraining order to stop the City from selling the truck and cash damages of $500,000 each from the City and Barry. After a hearing on January 5, 2006, the trial court denied as moot the request for temporary restraining order because the truck had already been sold. On February 24, 2006, the City and Berry filed a motion to dismiss appellant's action as frivolous or malicious under section 13.001, asserting appellant's action was barred by governmental immunity and official immunity. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(a)(2) (Vernon 2002).
        Appellant filed his first amended petition suing all appellees on Feb. 28, 2006. Against Berry and the City, appellant sought damages for the loss of his truck and for personal injuries he suffered when Berry called the police and appellant was arrested. Appellant sued Booth, a City employee, because Booth told TXU utility company that appellant was stealing natural gas at the house at 3819 Spence Street. Appellant also alleged Booth encouraged the City's Urban Rehabilitation Standards Board to condemn the house at 3819 Spence Street and have it demolished. Appellant sued Walker, a police officer for the City, for arresting appellant on August 25, 2003. Appellant sued City employee “John Doe” because in 2004 a City employee seized and sold due to unpaid parking tickets two vehicles parked in front of appellant's house at 3819 Spence Street. Appellant sued the City and Garcia, a City employee, for not issuing a refund of a water bill for 3814 Spence Street. Appellant also sued the City for demolishing his house at 3809 Spence Street. Appellant sought total damages of $4.8 million.
        The trial court granted Berry and the City's motion to dismiss on March 6, 2006. On July 31, 2006, the remaining defendants also moved for dismissal under section 13.001. At the hearing on their motion, appellees presented a copy of a deed showing appellant owned 3809 Spence Street.   See Footnote 1  The trial court granted the motion, entering final judgment on August 31, 2006.
SECTION 13.001
        Appellees moved for dismissal of appellant's action under Texas Civil Practice & Remedies Code section 13.001. That statute provides,

(a)

A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:



        (1)

the allegation of poverty in the affidavit is false; or



        (2)

the action is frivolous or malicious.



(b)

In determining whether an action is frivolous or malicious, the court may consider whether:



        (1)

the action's realistic chance of ultimate success is slight;



        (2)

the claim has no arguable basis in law or in fact; or



        (3)

it is clear that the party cannot prove a set of facts in support of the claim.



Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon 2002). The City and Berry moved for dismissal under subsection (a)(2); the remaining defendants moved for dismissal under both (a)(1) and (a)(2). The trial court granted the motions to dismiss without identifying the ground on which dismissal was granted.
APPELLANT'S BRIEF
        Appellant is pro se. He has filed a brief, but it is not a model of clarity. Much of the “Argument” section of the brief consists of little more than a restatement of each issue followed by quotations from cases, statutes, and ordinances with little or no explanation of how the issue and authorities relate to the case. To the extent we can decipher appellant's meaning, we shall address the arguments.
TEMPORARY RESTRAINING ORDER
        In his first through fifth issues, appellant contends the trial court erred in denying his motion for temporary restraining order (TRO) to stop the City from selling his 1952 pickup. There are no formal orders concerning the motion for TRO in the record, nor is there a reporter's record of any hearing on the motion. The docket sheet contains two notations: (1) on December 8, 2005, the trial court advised appellant “paperwork not in order for TRO,” and (2) on January 5, 2006, the trial court stated that appellant and the City appeared and “truck already sold; deny.”
        Appellant asserts the trial court erred in refusing to rule on appellant's motion for TRO in November 2005 or on December 8, 2005 because of appellant's failure to follow local rule 2.02. Appellant also asserts “[t]he trial court required plaintiff to serve notice of the TRO hearing and pleadings in contravention of RCP Rule 103”; “[t]he trial court abused discretion whereon it failed/refused to hold hearing of the TRO application in the courtroom with a record on 12-8-2005”; “[t]he trial court abused discretion, acted arbitrarily, when it refused to issue a temporary restraining order in November of 2005”; and “[t]he motion was filed 11-10-05, but not heard until January 5, 2006 nearly 60 days after filing the same, thereby causing and contributing to the complained of, threatened, and now historical injury.” Appellant also asserts that, at the January 5, 2006 hearing, the City failed to present evidence that the truck had been sold before the hearing. Appellant asserts these facts constitute common-law, statutory, and constitutional violations.
        There is no reporter's record or formal bill of exception from the hearing on the motion for TRO. To the extent appellant complains about the lack of a reporter's record, the appellate record does not show appellant timely objected to the court's failure to have the hearing recorded. Nor does the record show any objection by appellant to any delay in holding the hearing. Nor does the record show the court (1) refused to rule on appellant's motion in November 2005 for failure to follow local rule 2.02 or (2) required appellant to serve notice in violation of rule 103. Nor does the record on appeal show the City failed to present evidence that the truck had been sold before the hearing.   See Footnote 2 
        We cannot consider factual assertions unsupported by the appellate record. See Tex. R. App. P. 38.1(h); Marshall v. Housing Auth., 198 S.W.3d 782, 789 (Tex. 2006). Because we cannot consider appellant's unsupported factual assertions, we cannot consider his arguments concerning those factual assertions. We conclude appellant has failed to show the trial court erred in denying his motion for TRO. We overrule appellant's first through fifth issues.
RULE 12
        In his sixth through thirteenth issues, appellant asserts the trial court erred in not granting his motion under rule 12 requiring the Assistant City Attorney representing appellees to show authority to represent Berry in her individual capacity. In his twenty-fifth issue, appellant contends the trial court erred in not granting appellant's requested continuance based on his assertion of rule 12. Nothing in the record indicates the trial court ruled upon appellant's rule 12 motion or his motion for continuance either expressly or implicitly. Accordingly, this issue is not preserved for appeal. Tex. R. App. P. 33.1(a)(2). We overrule appellant's sixth through thirteenth and twenty-fifth issues.

OBSTRUCTION OF APPELLANT'S OBJECTIONS
        In his fourteenth and sixteenth through twenty-second issues, appellant contends the trial court “obstructed plaintiff's presentation of his Objections and Special Exceptions to Texas Civil Practice and Remedies Code 13.001(a)(2)(b)(c) prior to consideration of any of the defendant's exceptions, motions, and pleas.” In his fifteenth issue, appellant contends the trial court abused its discretion “by failing/refusing to consider and rule on” appellant's objections and special exceptions to appellees' motions to dismiss under section 13.001. Appellant's brief's “Argument” section concerning these issues contains only restatements of the issues and citations to the record and authorities. Appellant's brief provides no “clear and concise argument for the contentions made.” Tex. R. App. P. 38.1(h). Accordingly, we conclude these issues are not properly briefed. We overrule appellant's fourteenth through twenty-second issues.
RULING ON SECTION 13.001
        In his twenty-third issue, appellant contends the trial court abused its discretion “by considering and granting the defendant's motion, [p]ursuant to section 13.001 on March 3rd and March 6, 2006.” The trial court conducted a hearing on the City's and Berry's motion to dismiss under section 13.001 on March 3 and 6, 2006, and the trial court signed an order granting the motion on March 6. The remaining appellees did not file their motion to dismiss until July 31, 2006. We construe the twenty-third issue as concerning only Berry and the City's motion to dismiss.
        Appellant asserts the trial court should not have considered the motion to dismiss because it did not contain a certificate of conference as required by local rule 2.07. However, local rule 2.07(e) provides that a certificate of conference is not required for dispositive motions. See Dallas (Tex.) Civ. Dist. Ct. Loc. R. 2.07(e). The motion to dismiss was a dispositive motion.
        Appellant also argues that Berry's and the City's motion to dismiss was ex parte because there was no conference. An ex parte motion is “[a] motion to the court without notice to the adverse party.” Black's Law Dictionary 1036 (8th ed. 2004). Appellant does not dispute that he was served with the motion. The record shows he filed a response to the motion in the February 28, 2006 “Plaintiff's Objections and Special Exceptions” and he participated in the hearing on the motion on March 3 and 6, 2006. The motion was not an ex parte motion.
        Appellant next argues section 13.001 “is in contravention of RCP Rule 90, which establishes that general demurrers shall not be used.” See Tex. R. Civ. P. 90 (“General demurrers shall not be used.”). It appears appellant is asserting that section 13.001 supports the use of general demurrers,   See Footnote 3  which are prohibited by rule 90. “[W]hen a rule of procedure conflicts with a statute, the statute prevails unless the rule has been passed subsequent to the statute and repeals the statute . . . .” Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (per curiam). Section 13.001 was passed in 1987; rule of civil procedure 90 was approved in 1940 and amended in 1980. Thus, to the extent section 13.001 and rule 90 conflict, section 13.001 controls.
        Appellant also asserts the trial court did not clearly delineate whether it granted appellees' motion based upon section 13.001(a)(1), which provides that the trial court may dismiss the indigent plaintiff's cause of action if the court finds “the allegation of poverty in the affidavit is false.” Tex. Civ. Prac. & Rem. Code Ann. 13.001(a)(1) (Vernon 2002). Berry and the City did not move for dismissal under paragraph (a)(1), and their motion did not challenge appellant's allegation of poverty. During the hearing on Berry and the City's motion, appellees' attorney stated “the City is not alleging today” that appellant's affidavit of indigency was false.
        Appellant next asserts the trial court “did not clearly delineate” whether it granted Berry and the City's motion to dismiss based on section 13.001(a)(2), which permits the court to dismiss the indigent plaintiff's claim if the court finds “the action is frivolous or malicious.” Id. 13.002(a)(2). At the close of the hearing, the court announced, “With respect to the Motion to Dismiss Carla Berry and the City of Dallas, the Court will grant that under Section 13.001(b) of the Texas Civil Practice and Remedies Code.” Section 13.001(b) lists three factors the court may consider in determining “whether an action is frivolous and malicious.” Section 13.001(b) has no application to section 13.001(a)(1). By granting the motion under section 13.001(b), the court necessarily granted it under section 13.001(a)(2). We conclude the trial court's ruling was sufficiently clear.
        Appellant also asserts he pleaded that the City, by the actions of its employees, took appellant's property “without compensation, notice, hearing, etc.”or jury trial in violation of article one, section seventeen of the Texas Constitution and the Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments of the United States Constitution. Appellant does not explain how these pleadings concern whether the trial court erred in granting appellees' motion to dismiss under section 13.001. This assertion is not adequately briefed. Tex. R. App. P. 38.1(h).
        Appellant also asserts that appellees motion to dismiss did not allege with particularity any defect, omission, obscurity, duplicity, generality, or other insufficiency in appellant's pleading and that the motion did not identify any particular part of appellant's pleading as frivolous. Appellant cites rule 91 in support of this argument. Rule 91 concerns special exceptions to pleadings. See Tex. R. Civ. P. 91. Appellees' moved to dismiss under section 13.001, not rule 91, and rule 91 is not applicable to these facts.
        Appellant also asserts the City's and Berry's motion to dismiss was “arbitrary” because it “mention[ed] a vehicle referenced as paragraph I-C, however I-(c) of plaintiff's Amended original petition makes no mention of any vehicle at all.” When the City and Berry filed their motion to dismiss, appellant had not yet filed his amended petition. Thus, the reference was to paragraph I-C of appellant's original petition, which mentioned appellant's “1952 chevrolet pickup truck.” Therefore, as of the time the motion to dismiss was filed, the statement was correct and the motion was not “arbitrary.” We overrule appellant's twenty-third issue.
        In his twenty-fourth issue, appellant contends the trial court denied appellant equal rights under the Texas Constitution by granting Berry and the City's motion to dismiss. Appellant first asserts the motion to dismiss was moot because appellant amended his petition after the City and Berry moved to dismiss. Appellant argues the granting of the motion to dismiss after he filed an amended petition violated his right to due course of law. Appellant did not make this objection to the motion to dismiss in the trial court; accordingly, it is not properly before us on appeal. Tex. R. App. P. 33.1(a)(1).
        Appellant also argues the motion to dismiss does not identify which specific parts of appellant's amended petition Berry and the City complained of, citing rule of civil procedure 90. The motion to dismiss was brought under section 13.001, not rule 90. Rule of civil procedure 90 has no application to this case. Furthermore, section 13.001 concerns the indigent plaintiff's entire action. By moving to dismiss under section 13.001, appellees asserted appellant's entire action was frivolous or malicious. The motion clearly identified the specific part of the appellant's petition about which appellees complained-the entire petition. We overrule appellant's twenty-fourth issue.
                                                

REFUSAL TO RULE ON APPELLANT'S OBJECTIONS
        In his twenty-sixth and twenty-seventh issues, appellant contends the trial court abused its discretion and violated appellant's rights under article one, sections 3, 13, and 19 of the Texas Constitution by failing or refusing to rule on appellant's exceptions to the Texas Transportation Code and appellant's motion for a continuance. Appellant provides no argument in support of these contentions, and they are waived due to improper briefing. Tex. R. App. P. 38.1(h). Moreover, no error is preserved for appellate review because appellant did not object to the trial court's failure to rule on his objections, exceptions, and motion for continuance. Tex. R. App. P. 33.1(a)(2)(B). We overrule appellant's twenty-sixth and twenty-seventh issues.
JURY TRIAL
        In his twenty-ninth issue, appellant asserts the trial court abused its discretion when it “obstructed plaintiff's presentation for filing of his request for jury trial in January and February 2006 by instructing the court administrator not to file or schedule the requested date and in fact did not schedule a trial date.” Appellant's contention is unsupported by the record. The docket sheet shows appellant demanded a jury trial on “4-14-06”; nothing shows appellant made a request for jury trial in January and February 2006 or that the trial court instructed anyone to obstruct appellant. Nor does it appear appellant objected in the trial court to any interference with his right to demand a jury trial. Accordingly, the issue is not properly before us. Tex. R. App. P. 33.1(a)(1); 38.1(h); Marshall, 198 S.W.3d at 789. We overrule appellant's twenty-ninth issue.
SUFFICIENCY OF THE EVIDENCE
        In his twenty-eighth issue, appellant contends the trial court abused its discretion and denied appellant equal rights under the Texas Constitution by granting appellees Booth, Walker, Garcia, and Doe's motion to dismiss. These appellees move for dismissal under section 13.001 because (1) appellant's affidavit of indigency did not meet the requirements of rule of civil procedure 145, (2) appellant's affidavit contained materially false allegations of poverty, (3) appellant's petition failed to state a cause of action because it was unintelligible, and (4) the same reasons contained in Berry and the City's motion to dismiss as frivolous or malicious, i.e., governmental immunity and official immunity. Appellant asserts the motion was not supported by legally or factually sufficient evidence. The motion to dismiss on grounds (1), (3), and (4) did not require evidence because they were based on the face of appellant's affidavit and pleading. Concerning ground (2), appellees introduced evidence that appellant owned real estate, 3809 Spence Street. Appellant's brief does not explain why this evidence is insufficient or why grounds (1), (3), and (4) lack merit. Appellant also asserts the trial court erred in granting the motion to dismiss because the motion “violate[d] RCP 90 and only contained general demurrers.” As discussed above, to the extent of any conflict between section 13.001 authorizing motions to dismiss on the ground that the action is frivolous or malicious and rule 90's prohibition of general demurrers, section 13.001 controls. We overrule appellant's twenty-eighth issue.
        In his thirtieth issue, appellant contends the trial court erred in “not sustaining appellant's objection to the ordinances, codes, laws and or policies of the City of Dallas, Texas as relates to 'abandoned vehicles' and 'public nuisances.'” In the “Argument” section of the brief concerning this issue, appellant restates the issue, and then on the next line in boldface states, “No Evidence, Insufficient Evidence, Factually Insufficient, Legally Insufficient.” The remainder of the “Argument” section consists of quotations from cases. The brief does not identify the subject of the insufficient evidence or explain how the insufficient evidence affects appellant's objections to the City's abandoned-vehicle and public-nuisance statutes. Nor does the brief explain how the allegedly insufficient evidence shows the trial court erred in dismissing the cause under section 13.001. The case-law quotations do not concern evidentiary sufficiency or abandoned-vehicle or public-nuisance statutes. The brief contains no “clear and concise argument for the contentions made” in the thirtieth issue. Tex. R. App. P. 38.1(h). Accordingly, we conclude it is not properly briefed. We overrule the thirtieth issue.
        We affirm the trial court's judgment.


                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE

061328F.P05


Footnote 1 The City presented evidence, and appellant admitted in his amended petition, that appellant owned 3809 Spence Street. It is not clear from the record what interest, if any, appellant claimed in 3814 and 3819 Spence Street.

Footnote 2 The City asserts on appeal and in its pleadings below that the truck was sold on October 17, 2005, more than three weeks before appellant filed his motion for TRO. However, the record contains no evidence of the date the truck was sold.

Footnote 3 In Texas, “The office of a 'demurrer' is an admission of the facts as alleged, but declaring them to be insufficient upon which to predicate a cause of action or assert a defense . . . .” Jefferson v. Scott, 135 S.W. 705, 706 (Tex. Civ. App. 1911, orig. proceeding). Black's Law Dictionary states a general exception is “also termed general demurrer,” and it defines “general exception” as “An objection pointing out a substantial defect in an opponent's pleading, such as the insufficiency of the claim or the court's lack of subject-matter jurisdiction; an objection to a pleading for want of substance.” Black's Law Dictionary 603 (8th ed. 2004).

File Date[11/20/2007]
File Name[061328F]
File Locator[11/20/2007-061328F]