Opinion
No. 05-08-01024-CV
Opinion Filed November 12, 2009.
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 08-0675-015.
Before Chief Justice WRIGHT and Justices RICHTER and FILLMORE.
MEMORANDUM OPINION
This appeal by pro se plaintiff, Thomas V. Miller d/b/a: Miller House Movers ("Miller"), alleges "embezzlement," "fraudulent acts" and failure of the City of Van Alstyne (the "City") to investigate the "fraud with this Texas Star Bank." The trial court dismissed the City by order entered July 28, 2008. The City filed a special appearance and moved to dismiss this appeal. We affirm the trial court's order of July 28, 2008.
BACKGROUND
There is a long history of litigation between the parties to this lawsuit dating back nearly twenty years. In the present action, Miller filed an original petition against the State of Texas, the City and a Texas Department of Transportation officer. Miller also named the National Liability Fire Insurance Company ("National") as a plaintiff. National filed a special appearance and motion for non-suit and indicated it had no interest in the litigation. National was dismissed from the case, with prejudice, by order entered June 13, 2008.
It is difficult to discern the nature of Miller's claims from the original petition, but they appear to relate to Miller's house moving business and permits for trucks he uses in that business. The City and the trial court also had difficulty understanding Miller's claims. The City filed a special appearance and requested an order requiring Miller to replead. Following entry of an order directing Miller to replead his case, Miller attempted to file an Amended Petition against the same defendants, but also included Texas Star Bank, formerly First National Bank of Van Alstyne (the "Bank"), as a defendant. The Amended Petition raised allegations relating to fraudulent liens, embezzlement and a chapter 11 bankruptcy case filed by Miller, all acts occurring in the 1980's and 1990's and the subject of other lawsuits and proceedings. The clerk for the district court rejected the Amended Petition, by letter dated June 12, 2008, based upon an order that had been entered on March 27, 1998, in one of the earlier cases between the parties (the "1998 Order"). Pursuant to the 1998 Order, Miller was sanctioned for filing frivolous claims against the Bank and was prohibited from filing future claims without leave of court. Miller also filed the Amended Petition with this Court on August 14, 2008.
The City then moved to dismiss the case against it. On July 28, 2008, the trial court entered an order dismissing the City, "with prejudice to Plaintiff refiling same" and ordered the suit against the City "be severed to become a final judgment" ("Dismissal Order"). The trial court severed the claims against the City in the original action and transferred them into a new cause of action, number 08-1361-015. Miller filed this appeal from the original Cause No. 08-0675-015. No appeal was filed from the new Cause No. 08-1361-015. In his original Notice of Appeal, Miller alleged that the district court clerk refused to file his Motion for "Master In Chancery." No order was attached to the "Motion to Appeal." Accordingly, on August 5, 2008, the clerk of the court notified Miller that the appeal was defective because it did not contain the trial court order from which he was appealing. On August 14, 2008, Miller filed an "Amended Notice of Appeal No. 2" and attached the Dismissal Order. The clerk for The 15th District Court did not issue a new case number in the severed cause of action until August 18, 2008.
DISCUSSION
Miller raises two issues for review in his Amended Brief: The first is the "issue of of (sic) debtor being the owner of the collateral and looking on from a distance it looks as if the bank et al are holding all the marbles . . ." The second issue raised is "Damages to Miller." Neither of the issues raised by Miller in his brief relate to the Dismissal Order. The Amended Brief also fails to contain any citations to the record or to legal authority. Texas Rules of Appellate Procedure require appellate briefs to "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. The issues are waived on appeal if the appellant fails to comply with the rules. Abdelnour v. Mid Nat'l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App. 2006, no pet.).
Miller's original brief was rejected by the clerk of the court and the deficiencies were noted in a letter dated January 22, 2009. Miller filed an amended brief on February 3, 2009, that was nearly identical to the original brief and failed to correct any of the deficiencies indicated. We recognize that Miller is representing himself and his pleadings and briefs should be construed liberally. Tex. R. App. P. 38.9. However, even a pro se litigant is required to comply with applicable laws and procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978) ("There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves.") To hold otherwise would give a pro se litigant an advantage over a litigant who has retained counsel. Cooper v. Circle Ten Council Boy Scouts of America, 254 S.W.3d 689, 693 (Tex. App.-Dallas 2008, no pet.). Because Miller failed to comply with the rules of procedure all issues are waived and the trial court's order dismissing the case against the City is affirmed.