Opinion
No. 05-10-01324-CV
Opinion Filed October 26, 2011.
On Appeal from the 68th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 10-02927.
Before Justices BRIDGES, RICHTER, and MURPHY.
MEMORANDUM OPINION
Pro se appellant Nachiappan Subbiah Muthukumar appeals the trial court's order dismissing with prejudice his suit against appellees Gregory Dess, Mike Peng, and Livia Markoczy, professors in the School of Management at the University of Texas at Dallas (UTD), pursuant to their plea to the jurisdiction. We affirm.
Background
Muthukumar is a former UTD graduate student and teaching assistant in UTD's School of Management. Muthukumar sued Dess, Peng, and Markoczy in July 2010, alleging each professor was in a supervisory position to him and committed numerous tortious acts related to the release of his grades and adverse treatment of him for invoking the university's grievance procedure. The specific headings for the claims Muthukumar alleged against all appellees were identified as conspiracy, fraud by non-disclosure, assisting and encouraging, negligence per se, negligence, tortious interference with contract and with prospective relationships, intentional infliction of emotional distress, defamation per se, loss of consortium, and loss of earning capacity. Muthukumar also alleged claims for "invasion of privacy" against Dess and "promissory estoppel" against Peng.
Appellees filed a plea to the jurisdiction in which they requested dismissal of Muthukumar's lawsuit because (1) the claims against appellees in their official capacities as State employees were barred by sovereign immunity and, alternatively, (2) Muthukumar's election to sue UTD under the Texas Tort Claims Act (TTCA) regarding the same subject matter was a complete procedural bar to his suit against appellees as employees. Attached to the plea was a copy of a federal complaint filed by Muthukumar against UTD.
In response to appellees' plea to the jurisdiction, Muthukumar argued he had sued appellees in both their individual and official capacities and sovereign immunity applies only when an employee acts as an "`agent of the government' and implements a law in good faith." Muthukumar responded to appellees' second dismissal ground by arguing the word "TTCA" could not be found anywhere in his federal complaint against UTD and that he was not responding to that issue because appellees had "created this reason out of [their] imagination."
The trial court granted the plea to the jurisdiction without specifying the grounds in its order. In response to Muthukumar's request for findings of fact and conclusions of law, the trial court issued two conclusions of law that Muthukumar's claims were barred by sovereign immunity and his election to sue UTD under the TTCA was a complete procedural bar to his claims against Dess, Peng, and Markoczy regarding the same subject matter.
Muthukumar filed this appeal. By letter dated January 31, 2011, this Court notified Muthukumar his brief did not satisfy the requirements of rule 38.1 of the Texas Rules of Appellate Procedure. The notice identified fourteen deficient areas, including the failure of Muthukumar (1) to state all issues or points presented for review, (2) to include a concise statement of facts supported by record references, (3) to include a succinct, clear, and accurate statement of the arguments made in the body of the brief, and (4) to include appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(f)-(i).
Thereafter, Muthukumar filed an amended brief. Although Muthukumar references his complaint filed in the trial court, the plea to the jurisdiction, and his response, nowhere in the entire brief is there a single record reference. Instead, he makes the following statement:
I have presented elaborate arguments along with case law in my complaint and in the response to plea to jurisdiction. The details are available in these two documents and is not discussed here as it is a repetition of the same information.
Under the heading "Issues Presented for Review and Supporting Points," Muthukumar asserts the "issues presented for review" are that the trial court (1) "has not used the notion of sovereign immunity in the right manner," (2) "has not considered the causes of action or given any reason in its ruling," and (3) "has not followed the district clerk's policy in allowing [him] to set hearings."
Standard of Review
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; Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex. App.-Dallas 2008, no pet.). Accordingly, Muthukumar must comply with the applicable laws and rules of procedure. Mansfield State Bank, 573 S.W.2d at 185.
The law is well established that to present an issue for appeal, appellant's brief must contain, among other things, clear and concise argument for appellant's contentions with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(i). When a party fails to brief a complaint adequately, he waives the issue on appeal. Devine v. Dallas Cnty., 130 S.W.3d 512, 513-14 (Tex. App.-Dallas 2004, no pet.). As a prerequisite to presenting a complaint on appeal, a party must also have made a timely complaint to the trial court. See Tex. R. App. P. 33.1(a)(1).
As a general proposition, an appellant also must attack all independent bases or grounds that fully support a complained-of ruling or judgment on appeal. See Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423-24 (Tex. App.-Dallas 2009, no pet.) (citing Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.)). If an appellant fails to do so, we must affirm the ruling or judgment. See Britton, 95 S.W.3d at 681; see also Prater v. State Farm Lloyds, 217 S.W.3d 739, 740-41 (Tex. App.-Dallas 2007, no pet.) ("When a separate and independent ground that supports a ruling is not challenged on appeal, we must affirm the lower court's ruling."). This proposition is based on the understanding that if an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, we must accept the validity of that unchallenged independent ground. Britton, 95 S.W.3d at 681. As a result, any error in the grounds challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment. Id.; cf. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (except in cases of fundamental error, we "may not reverse the judgment of a trial court for a reason not raised in a point of error").
Analysis
Muthukumar does not raise an issue on appeal as to the second basis for the trial court's dismissal-that Muthukumar's election to sue UTD under the TTCA regarding the same subject matter is a complete procedural bar to his suit against appellees as employees. See Tex. Civ. Prac. Rem. Code § 101.106(a) (West 2005). In addition to Muthukumar's failure to address the TTCA as one of his issues, the only mention in his amended brief is as follows:
The plaintiff files this brief in support of the above three issues presented for review to this honorable court. It relates to the lower court's dismissal of the complaint stating that defendants have sovereign immunity and that the organization has been sued under [the TTCA]. The latter point is not factual.
Several paragraphs later, when describing what happened at the trial court hearing, Muthukumar states there was "not much argument" regarding appellees' second point. His response at the hearing was that he had "not sued the organization under [the] TTCA."
The only record before this Court, which does not include a reporter's record of the hearing on the plea to the jurisdiction, shows Muthukumar did not address at the trial court any of appellees' legal authorities and argument that the tort theories alleged against UTD constituted an election of remedies. See id. § 101.106(a). He simply took the position he had not mentioned the TTCA in his federal complaint and that he was not responding to that issue because appellees had "created this reason out of [their] imagination." Similarly, he does not present an appellate issue on the election of remedies basis for the trial court's dismissal or provide any argument or authorities related to that ground. See Tex. R. App. P. 38.1(i). Accordingly, and even assuming Muthukumar's brief were adequate to address the "issues" he has "presented for review," because an unchallenged, independent ground fully supports the trial court's dismissal pursuant to appellees' plea to the jurisdiction, any error in the grounds Muthukumar attempted to challenge on appeal is harmless. See Britton, 95 S.W.3d at 681. We must affirm the trial court's order. Id.; Prater, 217 S.W.3d at 740-41. In light of this conclusion, we need not address Muthukumar's arguments. See Tex. R. App. P. 47.1.
Conclusion
For the reasons stated, we affirm the trial court's order granting appellees' plea to the jurisdiction and dismissing the underlying suit with prejudice.