Opinion
No. 07-15-00410-CV
07-19-2016
HERSHALL JOSEPH SHELLEY, APPELLANT v. COLORADO BOARD OF GOVERNORS, ET AL., IN ITS CAPACITY AS THE ENTITY CHARGED WITH THE GENERAL CONTROL AND SUPERVISION OF COLORADO STATE UNIVERSITY, ET AL., APPELLEES
On Appeal from the 345th District Court Travis County, Texas
Trial Court No. D-1-GN-14-003625, Honorable Gisela D. Triana, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK, and PIRTLE, JJ.
Hershall Joseph Shelley (Shelley) appeals from an order granting the special appearance filed by Colorado Board of Governors', et al, (CSU) and dismissing the suit for want of personal jurisdiction. Shelley contends that the trial court erred in concluding that it lacked such jurisdiction over CSU. We affirm.
Because the appeal was transferred to this court from the Third Court of Appeals, we apply the latter's precedent where available should no controlling precedent from a higher court exist. See TEX. R. APP. P. 41.3.
The initial appellant's brief filed by Shelley lacked citation to the record. See TEX. R. APP. P. 38.1(i) (stating that the "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.") This court informed Shelley of the defect and afforded him opportunity to file another brief complying with the rules of appellate procedure. He was also warned that the "[f]ailure to file the corrected brief . . . may result in waiver of Appellant's arguments." He accepted that opportunity. The second brief he filed contained the same omission; it too lacked citation to the record.
As recognized in Sims v. Smith, No. 03-12-00242-CV, 2014 Tex. App. LEXIS 5122 (Tex. App.—Austin May 14, 2014, no pet.) (mem.op.), the failure to comply with the briefing requirements contained in Texas Rules of Appellate Procedure 38.1 and make appropriate citations to the record results in the waiver of the issue being urged. Id. at *8-9. Due to the continued absence in the brief of citation to the record, we abide Sims and conclude that Shelley waived his complaint about the trial court's decision.
That Shelley may be acting pro se is of no consequence. Such litigants are also obligated to follow the rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Todd v. State, No. 03-14-00386, 2016 Tex. App. LEXIS 1101, at *2 (Tex. App.—Austin February 4, 2016, no pet.) (mem.op., not designated for publication) If this were not so, they would be afforded an unfair advantage over those litigants represented by legal counsel. Mansfield State Bank v. Cohn, 573 S.W.2d at 184-85.
Despite Shelley waiving the complaint, we, nonetheless, conducted a de novo review of the issue. See Moncrief Oil Int'l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013) (stating that whether a court has personal jurisdiction over a defendant is a question of law reviewed de novo). The record before us does not illustrate that CSU purposefully established the requisite minimum contacts with Texas by providing online courses from Colorado or having one or two of its personnel journey to the Austin, Texas area to attend or teach a seminar unrelated to Shelley's remaining cause of action. See id. at 149-50 (stating that the exercise of "personal jurisdiction [over a non-resident defendant] comports with due process when (1) the nonresident defendant has minimum contacts with the forum state, and (2) asserting jurisdiction complies with traditional notions of fair play and substantial justice" and that a "defendant establishes minimum contacts with a forum when it 'purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'") They do not reveal a continuing relationship between CSU and the forum that is any more than random, fortuitous and attenuated.
And, while it may be that a CSU employee allegedly stole a computer from Shelley while in Texas (as argued by Shelley), that purported act of theft is not the basis of his sole remaining claim against CSU for age and race discrimination. So, even if we were to assume the tort occurred and add it to the mix, it is not enough to establish either specific or general personal jurisdiction over CSU.
Shelley alleged a myriad of causes of action. They seemed to have arisen after he allegedly was denied a doctorate by CSU. All but the discrimination claim were dismissed as frivolous. He did not appeal that decision or the levy of sanctions against him. --------
We affirm the trial court's order dismissing the suit for want of personal jurisdiction over CSU.
Per Curiam