Opinion
No. 05-07-01311-CV
Opinion issued May 12, 2009.
On Appeal from the 254th Judicial District Court Dallas County, Texas, Trial Court Cause No. DF-06-14449.
Before Chief Justice THOMAS and Justices FRANCIS and LANG-MIERS.
Opinion By Justice FRANCIS.
MEMORANDUM OPINION
In ten issues, Charles Thomas Ivey appeals the trial court's final divorce decree. For the reasons that follow, we affirm the trial court's judgment.
Denyce Ann Ivey filed for divorce from appellant on August 31, 2006. Appellant filed his answer September 29, 2006. On July 2, 2007, the parties appeared for trial, with appellant representing himself. Midway through trial, appellant objected to "being in trial, Your Honor, without being given proper notice of the trial." The trial court overruled the objection, and the trial resumed. That same day, the trial court signed the divorce decree. In a motion for new trial, appellant complained he had not received forty-five days notice of trial setting and was therefore entitled to a new trial. Although the trial court initially denied the motion for new trial, the court granted a motion for reconsideration of the motion for new trial, granted a new trial, and set the case for a pretrial hearing December 3, 2007. Both parties appeared at the pretrial hearing at which time the court set the case for trial January 9, 2008. On January 8, 2008, appellant filed a document entitled "Repondents [sic] Objection to Trial Setting" in which he complains he did not receive forty-five days notice of trial. The following day, appellant did not appear for trial; appellee and her counsel did appear. The trial court rendered a divorce decree, noting that appellant had "failed to appear and defaulted."
On February 4, 2009, appellant filed a request for findings of fact and conclusions of law, followed two weeks later by a "Motion to Abate and Second Motion for New Trial." On March 19, 2008, he filed a document entitled "Verified Constitutional Disqualification of Judge David Hanschen and Affidavit of Prejudice, Objection to Pretrial Hearing Setting after Default Judgment," and a "Motion to Recuse Dallas District Administrative Judge John D. Ovard." Although an order denying the motion to recuse Judge Ovard was signed March 20, 2008, no other orders were signed, and no findings or conclusions were filed. This appeal followed.
Appellant raises ten issues in his brief. After reviewing appellant's brief, we conclude issues three through nine are inadequately briefed. Rule 38.1(h) of the rules of appellate procedure requires an appellant to include in his brief a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). A point of error not supported by argument and authority is waived. See Devine v. Dallas County, 130 S.W.3d 512, 513-14 (Tex.App. 2004, no pet.). 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 Cas. Co., 126 S.W.3d 676, 677 (Tex.App. 2004, pet. denied). On appeal, as at trial, the pro se appellant must properly present his case. Id. at 678.
In issues four through seven, appellant cites no authority in support of his complaints. In issues three, eight, and nine, appellant provides one general citation in support of his contentions, but provides no standard of review or discussion of how the law applies to the facts of this case. See Kupchynsky v. Nardiello, 230 S.W.3d 685, 692 (Tex.App. 2007, pet. denied) (issue inadequately briefed when party gives general cite to one case stating elements of cause of action). Although we construe liberally pro se pleadings and briefs, we nonetheless require pro se litigants to comply with applicable laws and rules of procedure. To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex.App. 2008, no pet.). Because appellant offers no legal analysis and fails to cite any meaningful authority to support his specific contentions, he presents nothing for us to review on these issues. We overrule issues three through nine.
Appellant frames his tenth issue as follows: "Was it abuse of discretion for the trial court judge not to recuse himself due to the apparent animosity and bias demonstrated by his actions throughout this case." Appellant's motion, entitled "Verified Constitutional Disqualification," states "This is not a recusal motion." Therefore, we address only whether the motion raised a constitutional disqualification and do not address any issue regarding recusal.
Judges may be removed from a particular case if they are constitutionally disqualified, subject to a statutory strike, or are recused under rules promulgated by the Texas Supreme Court. In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998). The grounds and procedures for each type of removal are fundamentally different. Id. The grounds for a constitutional disqualification are set out in article V, section 11 of the Texas Constitution which provides: "No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, . . ., or when the judge shall have been counsel in the case." Tex. Const. art. V, § 11. Appellant's "Verified Constitutional Disqualification" does not allege the trial judge had an interest in the case, was connected with either appellant or appellee, or had been counsel in the case. Thus, although appellant sought constitutional disqualification of the trial judge, his document fails to state a ground mandating constitutional disqualification. We overrule issue ten.
In issues one and two, appellant claims he did not receive forty-five days' notice of trial as required by rule 245 and he is therefore entitled to a new trial.
Rule 245 provides:
The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time.
Tex. R. Civ. P. 245. A party is entitled to forty-five days notice only when it is a "first setting for trial." Id. When the setting in question is not the first setting, the second clause of rule 245 applies and the parties are entitled to "reasonable notice." Id.; see O'Connell v. O'Connell, 843 S.W.2d 212, 215 (Tex.App. 1992, no writ). Courts look to the facts of the individual case in determining what is reasonable notice for a second setting under rule 245. Id.
Although appellant claims we must reverse the judgment because he was denied forty-five days notice of the January 9, 2008 trial setting, we disagree. The January 9, 2008 setting was not the first trial setting; rather, the first trial setting was July 2, 2007. Thus, appellant was entitled to reasonable notice under rule 245. Appellant does not contend the notice was unreasonable. Because appellant was not entitled to forty-five days' notice and does not otherwise argue the notice given was unreasonable, we cannot conclude the trial court erred.
Even if we assumed he was entitled to forty-five days notice, failure to received such notice does not alone constitute reversible error. See In re Marriage of Parker, 20 S.W.3d 812, 818 (Tex.App. 2000) (because due process requires only actual or constructive notice that is reasonable under circumstances, forty-five day notice requirement of rule 245 goes beyond requirements of due process, citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)). To be entitled to reversal, appellant must establish the error was harmful. See Tex. R. App. P. 44.1(a). Trial error is harmful and requires reversal if it probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the court of appeals. See Tex. R. App. P. 44.1(a).
Appellee's original petition was filed August 31, 2006, and appellant filed his answer one month later. Appellant appeared for and participated in the first trial in July 2007. After the trial judge granted his motion for new trial, the case was set for pretrial conference in December 2007 and trial in January 2008. In his brief, appellant does not explain how he was harmed by the trial court's purported error. He does not explain why, after the case was pending for over fifteen months, he required additional time before proceeding to trial. He does not claim the parties had inadequate discovery nor does he argue he was unable to secure witnesses or obtain evidence in support of his claims. Likewise, his objection filed with the trial court failed to state why he needed additional time or how the January 9, 2008 trial date would prejudice his case. Appellant argues only that the forty-five-day notice requirement is mandatory and requires reversal. Because we conclude otherwise, we reject appellant's claims and overrule issues one and two.
We affirm the trial court's judgment.