Opinion
No. 05-19-00752-CV
08-17-2020
JULES DYLAN STUER, Appellant v. SUSAN DUESLER, Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-18-07494
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Evans
Opinion by Justice Evans
The Honorable David L. Bridges, Justice, participated in the submission of this case, however, he did not participate in the issuance of this opinion due to his death on July 25, 2020. Chief Justice Robert Burns has substituted in for Justice Bridges and has reviewed the briefs and the record before the Court.
Appellant Jules Dylan Stuer appeals the trial court's order dismissing his case against appellee Susan Duesler. Representing himself without an attorney, Stuer filed an appellant's brief. We notified him that his brief was deficient and instructed him to file an amended brief to comply with the Texas Rules of Appellate Procedure. Stuer's amended brief is also deficient and fails to comply with the rules. Accordingly, we dismiss the appeal.
BACKGROUND
A. Family Court
On April 6, 2017, Duesler was appointed as the amicus attorney for a minor child that was the subject of a custody dispute between Stuer and his wife in the 255th Family District in Dallas County. The family court held a trial regarding the divorce and custody proceeding in January 2018 and signed a Final Decree of Divorce on March 23, 2018.
B. District Court
On June 8, 2018, Stuer filed a lawsuit against Duesler in Dallas County Distict Court alleging a claim for defamation and damages. Duesler sought immunity in her answer pursuant to Texas Family Code section 107.009. Duesler then filed a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a. The district court granted the motion to dismiss on October 5, 2018 ("October order"). On May 31, 2019, the district court heard Duesler's motion for attorney's fees related to her motion to dismiss. The district court assessed attorney's fees against Stuer by order dating May 31, 2019 ("May order"). Stuer filed a notice of appeal regarding the October order and the May Order.
"A guardian ad litem, an attorney ad litem, a child custody evaluator, or an amicus attorney appointed under this chapter is not liable for civil damages arising from an action taken, a recommendation made, or an opinion given in the capacity of guardian ad litem, attorney ad litem, child custody evaluator, or amicus attorney." See TEX. FAMILY CODE § 107.009.
C. Court of Appeals
Stuer filed an appellant's brief on October 17, 2019. By letter dated October 28, 2019, the Clerk of the Court sent Stuer a letter which stated as follows:
The appellant's brief in the above referenced case does not satisfy the requirements of Rule 38 of the Texas Rules of Appellate Procedure. Specifically, the brief is deficient as follows:
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X The table of contents does not indicate the subject matter of each issue or point, or group of issues or points. TEX. R. APP. P. 38.1(b).
X It does not contain an index of authorities arranged alphabetically and indicating the pages of the brief where the authorities are cited. TEX. R. APP. P. 38.1(c).
X It does not contain a concise statement of the case, the course of proceedings, and the trial court's disposition of the case supported by record references. TEX. R. APP. P. 38.1(d).
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X It does not contain a concise statement of the facts supported by record references. TEX. R. APP. P. 38.1(g).
X It does not contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. TEX. R. APP. P. 38.1(h).
X The argument does not contain appropriate citations to authorities. TEX. R. APP. P. 38.1(i).
X The argument does not contain appropriate citations to the record. TEX. R. APP. P. 38.1(i).
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X Text of brief is not double spaced. TEX. R. APP. P. 9.4(d).
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X It does not contain a proper certificate of compliance. TEX. R. APP. P. 9.4(i)(3).
X It does not contain a proper certificate of service. TEX. R. APP. P. 9.5(e)(2)(3).
X Documents in appendix must be redacted to remove name of child. TEX. R. APP. P. 9.8(b).
X Documents in appendix must be redacted to remove name of parent. TEX. R. APP. P. 9.8(b).
X Documents contain sensitive data. TEX. R. APP. P. 9.9 or 9.10.
The letter further informed Stuer that his failure to file an amended brief that complied with the Texas Rules of Appellate Procedure within ten days could result in dismissal of his appeal. Stuer filed an amended brief on November 7, 2019.
ANALYSIS
A. Failure to Comply with Rule 38.1
In Texas, an individual who is a party to civil litigation has the right to represent himself at trial and on appeal. TEX. R. CIV. P. 7. The right of self-representation carries with it the responsibility to adhere to our rules of evidence and procedure, including our appellate rules of procedure if the party chooses to represent himself at the appellate level. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.). Courts regularly caution pro se litigants that they will not be treated differently than a party who is represented by a licensed attorney. Id. To comply, an appellant must articulate the issues we are asked to decide. Lee v. Abbott, No. 05-18-01185-CV, 2019 WL 1970521, at *1 (Tex. App.—Dallas May 3, 2019, no pet.) (mem. op.). The brief fails if we must speculate or guess about the appellant's contentions. Id. We are not responsible for identifying possible trial court error, searching the record for facts that may be favorable to a party's position, or doing legal research that might support a party's contention. Id. Were we to do so, even for a pro se litigant untrained in law, we would be abandoning our role as judges and become an advocate for that party. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).
Our appellate rules have specific requirements for briefing. TEX R. APP. P. 38. These rules require appellants to state concisely the complaint they may have, provide understandable, succinct, and clear argument for why their complaint has merit in fact and in law, and cite and apply law that is applicable to the complaint being made along with record references that are appropriate. TEX R. APP. P. 38.1(f), (h), and (i). When deciding whether an appellant's brief is deficient, we do not adhere to any rigid rule about the form of a brief. See Bolling, 315 S.W.3d at 895. Pro se litigants may not be versed in the form of briefing favored by seasoned appellate practitioners. Id. We do, however, examine briefs for compliance with prescribed briefing rules, including specifically, in this case, rule 38.1. TEX. R. APP. P. 38.1. After a close examination, if we can conclude a brief complies with the Texas Rules of Appellate Procedure, we submit the appeal for review and decision on the merits. Lee v. Abbott, 2019 WL 1970521, at *1. If we cannot, we may dismiss the appeal as we are authorized to do. TEX. R. APP. P. 42.3.
In this case, our notice to Stuer informed him that his brief failed to comply with the Texas Rules of Appellate Procedure. Stuer's amended brief, however, fails to remedy these deficiencies. Although Stuer purports to present six issues for our review, his brief fails to present applicable facts, argument, authorities and record references for each purported issue. To the contrary, Stuer's brief is largely incoherent and consists of a string of jumbled and chaotic references to laws, constitutional rights, alleged crimes, wrongdoing and complaints which are irrelevant to the underlying case. For example, Stuer's amended brief references violations of "Federal Victim's Rights Law," "Federal Victim's Rights Act," and due process law. Although Stuer mentions that the trial court "erred in grant[ing] Dismissal of the full Defamation case" in the issues presented to review, there is no legal analysis of this argument or any citation to relevant supporting authorities. The amended brief also complains of action and wrongdoing by individuals who are not defendants in the underlying action such as his ex-wife's attorney in the divorce proceeding. Further, the amended brief is completely devoid of record references. See Hernandez v. Dallas Indep. Sch. Dist., No. 05-17-00227-CV, 2018 WL 1835692, at *2 (Tex. App.—Dallas Apr. 19, 2018, no pet.) (mem. op.) ("Because Hernandez's brief is unsupported by appropriate citations to the record, he has preserved nothing for our review."). Because Stuer has failed to comply with the briefing requirements of our appellate rules after having been given the opportunity to do so, we dismiss appellant's appeal. TEX. R. APP. P. 42.3.
B. Motion to Dismiss
Even if we had concluded that Stuer's amended brief met the procedural requirements, Stuer has failed to assert how the trial court erred in granting the dismissal of the case.
Dismissal is appropriate under Rule 91a "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought . . . [or] no reasonable person could believe the facts pleaded." See TEX. R. CIV. P. 91a. Appellate courts review a trial court's award of a dismissal under Rule 91a under a de novo standard of review. City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016).
In her motion to dismiss, Duesler argued that the trial court should dismiss Stuer's defamation case for two reasons:
(1) Plaintiff's defamation cause of action has no basis in fact as the alleged defamatory statements of Ms. Duesler to Faith & Liberty's Place Family Center (and the transmission of a court's Final Decree of Divorce) were based on Plaintiff's own statements (See Plaintiff's own admission in his First Amended Petition, Paragraph 10(c): "This was based on conditional statements."); and
(2) Plaintiff's defamation cause of action has no basis in law as Ms. Duesler's statements and transmission of the court's Final Decree of
Divorce were made in her official capacity as an Amicus Attorney for which she enjoys immunity.The trial court did not specify the ground or grounds upon which it granted the motion to dismiss. Accordingly, Stuer was required to challenge both grounds raised by Duesler in the motion to dismiss. See Estate of Savana, 529 S.W.3d 587, 592 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ("If an order granting a Rule 91a motion does not specify the grounds for dismissal, a party appealing the order must challenge every ground upon which the trial court could have granted the motion.").
We first note that Stuer did not address Duesler's first argument in either his trial court pleadings or on appeal. Accordingly, he has failed to challenge all grounds upon which the trial court could have granted the motion to dismiss and the appeal fails for this reason. See Parkhurst v. Office of Att'y Gen. of Tex., 481 S.W.3d 400, 402 (Tex. App.—Amarillo 2015, no pet.) (quoting Berger v. Flores, No. 03-12-00415-CV, 2015 WL 3654555, at *4 (Tex. App.—Austin June 12, 2015, no pet.) (mem. op.)) ("[I]it is appropriate to impose upon an appellant attacking a dismissal under Rule 91a the same obligation as one attacking a summary judgment when the trial court fails to mention a particular ground on which it relied. In each situation, he must negate the validity of each ground upon which the trial court could have relied. If he fails to address any particular ground, 'we must uphold the [order] on the unchallenged ground.'").
In regard to the immunity argument, the Texas Family Code provides that "[a] guardian ad litem, an attorney ad litem, a child custody evaluator, or an amicus attorney appointed under this chapter is not liable for civil damages arising from an action taken, a recommendation made, or an opinion given in the capacity of guardian ad litem, attorney ad litem, child custody evaluator, or amicus attorney." TEX. FAM. CODE §107.009(a). The statute further provides that "[s]ubsection (a) does not apply to an action taken, a recommendation made, or an opinion given: (1) with conscious indifference or reckless indifference to the safety of another; (2) in bad faith or with malice; or (3) that is grossly negligent or willfully wrongful." Id. at §107.009(b). In this case, Stuer fails to assert which exception applies in this case so that Duesler may be held liable. Further, Stuer failed to present any facts or argument in support of his assertion that Duesler is not immune from liability based upon her role as an amicus attorney in the divorce proceeding.
For all of these reasons, we conclude that had we looked at the merits of the case, we would affirm the trial court's order granting dismissal of the case.
CONCLUSION
As Stuer failed to comply with the briefing requirements of our appellate rules after having been given an opportunity to do so, we dismiss appellant's appeal.
/David Evans/
DAVID EVANS
JUSTICE 190752F.P05
JUDGMENT
On Appeal from the 298th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-18-07494.
Opinion delivered by Justice Evans. Chief Justice Burns and Justice Pedersen, III participating.
In accordance with this Court's opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee SUSAN DUESLER recover her costs of this appeal from appellant JULES DYLAN STUER. Judgment entered this 17th day of August 2020.