                                                                                    ACCEPTED
                                                                                04-15-00287-CV
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                           7/29/2015 6:37:13 PM
                                                                                 KEITH HOTTLE
                                                                                         CLERK

                    No. 04-15-00287-CV
________________________________________________________
                                                              FILED IN
               IN THE COURT OF APPEALS        4th COURT OF APPEALS
                                               SAN ANTONIO, TEXAS
     FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS
                                              07/29/2015 6:37:13 PM
                    AT SAN ANTONIO                KEITH E. HOTTLE
________________________________________________________
                                                       Clerk

            CECIL ADAMS and MAXINE ADAMS,
                      Appellants,

                              v.

 HARRIS COUNTY, REBECCA ROSS, KATHLEEN KEESE, and
         CHRISTOPHER A. PRINE, Clerk of the Court,
                        Appellees.
________________________________________________________
            On Appeal from the 269th District Court
                      Harris County, Texas
             District Court Cause No. 2014-35653


         BRIEF OF APPELLEE HARRIS COUNTY
________________________________________________________
                            VINCE RYAN
                            Harris County Attorney

                            /s/ Keith A. Toler
                            KEITH A. TOLER
                            Assistant County Attorney
                            State Bar No. 24088541
                            1019 Congress, 15th Floor
                            Houston, Texas 77002
                            Phone: (713) 274-5265
                            Fax: (713) 755-8924
                            Email: Keith.Toler@cao.hctx.net

                            ATTORNEY FOR APPELLEE
                            HARRIS COUNTY

           ORAL ARGUMENT NOT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL
      In accordance with Texas Rule of Appellate Procedure 38.2(a), Appellee

Harris County provides the following minor correction to Appellants’ list of

parties’ counsel. Lead appellate counsel for Harris County is Keith Toler. Clinton

Gambil and Brian Quintero remain lead counsel for Harris County and Chris

Daniels, respectively, only in the trial court below. Mr. Toler’s information is as

follows:

      Keith A. Toler
      Assistant County Attorney
      Office of Harris County Attorney
      State Bar No. 24088541
      1019 Congress, 15th Floor
      Houston, Texas, 77002
      Phone: (713) 274-5265
      Fax: (713) 755-8924
      Email: Keith.Toler@cao.hctx.net

      ATTORNEY FOR APPELLEE
      HARRIS COUNTY




                                         ii
                                           TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iv

Statement of the Case.................................................................................................2

Issue Presented ...........................................................................................................2

Statement of Facts ......................................................................................................2

Summary of the Argument.........................................................................................4

Argument....................................................................................................................5

Prayer .........................................................................................................................8

Certificate of Compliance ........................................................................................10

Certificate of Service ...............................................................................................11




                                                               iii
                                  INDEX OF AUTHORITIES

Cases                                                                                                 Page
Allegiance Hillview, L.P. v. Range Tex. Prod., LLC,
      347 S.W.3d 855 (Tex. App.—Fort Worth 2011, no pet.) ............................... 7

Burnett Ranches, Ltd. v. Cano Pet., Inc.,
     289 S.W.3d 862 (Tex. App.—Amarillo 2009, pet. denied) ............................ 6

Carter v. Attorney Gen. of Texas,
      No. 04-13-00424-CV, 2014 WL 3843954
      (Tex. App.—San Antonio, Aug. 6, 2014, no pet.) .......................................... 5

Castro v. Ayala,
      --- S.W.3d ---, No. 08-12-00142-CV, 2014 WL 1938837
      (Tex. App.—El Paso 2013, no pet) ............................................................. 6, 7

Devine v. Dallas Cnty.,
     130 S.W.3d 512 (Tex. App.—Dallas 2004, no pet.) ....................................... 6
ERI Consulting Eng’rs v. Swinnea,
     318 S.W.3d 867 (Tex. 2010) ........................................................................... 7
Frankoff v. Norman,
     448 S.W.3d 75 (Tex. App.—Houston [14th Dist.] 2014, no pet.) .................. 6
Fredonia State Bank v. Gen. Am. Life Ins. Co.,
     881 S.W.2d 279 (Tex. 1994) ........................................................................... 6
Gonzalez v. VATR Constr. LLC,
     418 S.W.3d 777 (Tex. App.—Dallas 2013, no pet.) ....................................... 6
Gurka v. Gurka,
     402 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ................ 6

Mansfield State Bank v. Cohn,
     573 S.W.2d 181 (Tex. 1978) ........................................................................... 5

Republic Underwriters Ins. v. Mex-Tex, Inc.,
     150 S.W.3d 423 (Tex. 2004) ........................................................................... 5



                                                     iv
San Saba Energy, L.P. v. Crawford,
      171 S.W.3d 323 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ................ 6

Sink v. Sink,
       364 S.W.3d 340 (Tex. App.—Dallas 2012, no pet.) ................................... 6, 7

Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
      106 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) ............ 6

WorldPeace v. Comm’n for Lawyer Discipline,
     183 S.W.3d 451 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) ......... 6

Rules
Tex. R. App. P. 38.1............................................................................................... 5, 6

Tex. R. App. P. 38.2................................................................................................... 2
Tex. R. App. P. 41.3................................................................................................... 5




                                                           v
                          No. 04-15-00287-CV
      ________________________________________________________

                     IN THE COURT OF APPEALS
           FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS
                          AT SAN ANTONIO
      ________________________________________________________

                    CECIL ADAMS and MAXINE ADAMS,
                              Appellants,

                                         v.

       HARRIS COUNTY, REBECCA ROSS, KATHLEEN KEESE, and
               CHRISTOPHER A. PRINE, Clerk of the Court,
                              Appellees.
      ________________________________________________________
                     On Appeal from the 269th District Court
                               Harris County, Texas
                      District Court Cause No. 2014-35653


               BRIEF OF APPELLEE HARRIS COUNTY
      ________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Appellee Harris County files its brief in response to the Appellants’ brief,

respectfully showing this Court the following:




                                         1
                          STATEMENT OF THE CASE
Nature of the Case                 Interpleader suit by Harris County involving funds
                                   deposited in the Harris County District Court’s
                                   registry by Appellee Ross pursuant to a final
                                   judgment in Cause Number 2010-12207, 269th
                                   District court, Maxine Adams and Cecil Adams v.
                                   Rebecca Ross. (C.R. at 6–11).

Trial Court                        269th District Court, Harris County, Texas, the
                                   Honorable Dan Hinde

Course of Proceedings &            The district court denied Appellants’ motion to
Trial Court Disposition            dismiss Harris County’s interpleader action. (C.R.
                                   at 229). The district court granted Appellee Prine’s
                                   plea to the jurisdiction. (C.R. at 231). Appellants’
                                   Notice of Appeal challenged both interlocutory
                                   orders. (C.R. at 259). Trial is set for August 17,
                                   2015. (C.R. at 294).

                                  ISSUE PRESENTED
      Whether Appellants waived their appeal of the district court’s denial of

Appellant’s motion to dismiss Harris County’s interpleader suit by failing to raise

the issue in Appellants’ Brief.

                            STATEMENT OF FACTS
      Pursuant to Texas Rule of Appellate Procedure 38.2, Appellee Harris

County challenges and supplements the Appellants’ Statement of Facts with the

following information.

      This interpleader action arose out of a previous landlord-tenant lawsuit

between Appellants and Appellee Ross. Appellants, who are husband and wife,


                                            2
jointly won damages in that lawsuit but appealed several issues. After a

garnishment by Appellants on Ross while the appeal was pending, Ross deposited

the balance of the judgment due into the court’s registry, which represents the

corpus of the interpleader action. Appellants did not prevail on their appeal. 1

         During the previous lawsuit between Appellants and Ross, one of the

Appellant spouses was granted pauper status for a period during the proceedings.

The appellate mandate created questions for the District Clerk and others.2

         Harris County filed this interpleader action on June 20, 2014, relating to

putative claims and funds awarded from the litigation between Appellants and

Ross. The parties included (1) Appellants, tenants; (2) Ross, landlord; (3) Keese,

court reporter; (4) Harris County through services of its District Clerk; (5) Prine,

Court Clerk of the Fourteenth Court of Appeals of Texas; and (6) the State of

Texas. Harris County seeks an order from the district court determining the proper

partition of the money in the court’s registry.3

         In this litigation, Appellants have filed numerous motions in the district

court.4 Two of those motions, decided against Appellants, are at issue in this

1
         C.R. at 8 (Harris County’s Petition in Interpleader in the district court below, June 20,
2014).
2
         C.R. at 8–9.
3
         C.R. at 6–11.
4
      C.R. at 13–16, 32–36, 66–68, 69–71, 106–07, 116–21, 128–29, 140–48, 183–85, 186–88,
232–37, 238–40.
                                                 3
appeal. According to the Notice of Appeal, Appellants seek interlocutory review of

two orders issued by the district court on March 13, 2015: (1) order sustaining

Appellee Prine’s plea to the jurisdiction and dismissing with prejudice the Adams’s

cross- or counter-claims against Prine; and (2) order denying the Adams’ motion to

dismiss Harris County’s Interpleader Action.5

       However, Appellants’ Brief does not address their motion to dismiss the

interpleader action. Instead, the Adams briefed only the plea to the jurisdiction

issue.6 In their Brief, the Adams prayed that this court “(1) revers[e] . . . the order

granting Mr. Prine’s plea to the jurisdiction and (2) in the interest of justice . . . that

this Court will review pending motions for review of interlocutory orders that

impairs the effectiveness of the relief sought or that may be granted on appeal.”7

                         SUMMARY OF THE ARGUMENT
       Appellants failed to brief their arguments, if any, challenging the district

court order denying Appellants’ motion to dismiss Harris County’s interpleader

action. To raise a claim on appeal, Appellants were required to, but did not, argue



5
        C.R. at 259–62 (Notice of Appeal, Apr. 2, 2015); C.R. at 229 (Order granting Appellee
Prine’s plea to the jurisdiction, Mar. 13, 2015); C.R. at 241 (Amended order granting Appellee
Prine’s plea to the jurisdiction, Mar. 16, 2015); C.R. at 231 (Order denying Adams’s motion to
dismiss, Mar. 13, 2015).
6
       See generally Adams’ Appellate Brief, June 19, 2015.
7
       Id. at 11.

                                              4
the claim and cite to legal authority. An appellee can hardly argue against an

argument that was never made.

       Moreover, this is the only issue directed at Harris County because, unlike the

plea to the jurisdiction, Appellants’ motion to dismiss was directed at Harris

County’s interpleader petition. Therefore, the only issue raised against Harris

County was abandoned by Appellants’ failure to address the issue in their Brief.

                                         ARGUMENT
       Appellants waived any argument on appeal regarding the district court’s

denial of Appellants’ motion to dismiss the interpleader action.8 An appellant

waives any issue that is not properly supported in the party’s brief. 9 To properly

support an argument, Texas Rule of Appellate Procedure 38.1(i) requires a brief to

“contain a clear and concise argument for the contentions made, with appropriate


8
         This is the only challenge directed at Harris County. Appellants’ other issue regarding the
district court’s grant of Appellee Prine’s plea to the jurisdiction is not directed at Harris County
and is not discussed in this Brief.
9
        Republic Underwriters Ins. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). To the
extent that precedent from this Court is inconsistent with precedent of the First Court of Appeals
from which this case was transferred by order of the Texas Supreme Court, this Court “must
decide the case in accordance with the precedent of the [First Court of Appeals] under principles
of stare decisis . . . ” Tex. R. App. P. 41.3.

        A pro se litigant is held to the same standard as litigants represented by counsel “or else
they would be given an unfair advantage over litigants represented by counsel.” Mansfield State
Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (citations omitted). See also Carter v.
Attorney Gen. of Texas, No. 04-13-00424-CV, 2014 WL 3843954, at *4 (Tex. App.—San
Antonio, Aug. 6, 2014, no pet.) (overruling pro se litigant’s issues that were “not adequately
briefed under Rule 38.1 . . . ”).

                                                 5
citations to authorities and to the record.”10 An appellant must argue that specific

legal authority supports her position based on the facts in the record.11

       An appellant’s “failure to provide appropriate record citations or a

substantive analysis waives an appellate issue.”12 As the Fifth Court of Appeals has

explained,

       Stated otherwise, an appellant must provide such a discussion of the
       facts and the authorities relied upon as may be requisite to maintain
       the point at issue. “This is not done by merely uttering brief
       conclusory statements, unsupported by legal citations.” Appellate
       courts must construe briefing requirements reasonably and liberally,
       but a party asserting error on appeal still must put forth some specific
       argument and analysis showing that the record and the law support his
       contention.13

10
       Tex. R. App. P. 38.1(i).
11
        See, e.g., Frankoff v. Norman, 448 S.W.3d 75, 87–88 (Tex. App.—Houston [14th Dist.]
2014, no pet.) (finding waiver of error because appellant included no legal argument or analysis
explaining how trial court ruling was abuse of discretion); Castro v. Ayala, --- S.W.3d ---, No.
08-12-00142-CV, 2014 WL 1938837, at *5 (Tex. App.—El Paso 2013, no pet) (finding waiver
of several arguments because appellant provided no analysis or authority to support issue on
appeal); Burnett Ranches, Ltd. v. Cano Pet., Inc., 289 S.W.3d 862, 870 (Tex. App.—Amarillo
2009, pet. denied) (finding waiver of error where argument was conclusory on some issues and
failed to explain why objections were deficient).
12
        Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994);
Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 783 (Tex. App.—Dallas 2013, no pet.) (citing
WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied); Devine v. Dallas Cnty., 130 S.W.3d 512, 513–14 (Tex. App.—Dallas
2004, no pet.). See also Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—Dallas 2012, no pet.)
(citations omitted) (“Bare assertions of error, without argument or authority, waive error.”)
13
        Gonzalez, 418 S.W.3d at 784 ((citing and quoting Tesoro Petroleum Corp. v. Nabors
Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)
(citing also San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston
[14th Dist.] 2005, no pet.)). See also Gurka v. Gurka, 402 S.W.3d 341, 349–50 (Tex. App.—
Houston [14th Dist.] 2013, no pet.) (overruling issue where appellants “offer[ed] no analysis or
citation to authority supporting their position that the trial court abused its discretion . . . ”).

                                                 6
If an issue is not properly briefed, an appellate court has “no duty, or even right, to

perform an independent review of the record and applicable law to determine if

there was error.”14

       Here, Appellants abandoned their challenge to the district court order

denying Appellants’ motion to dismiss the interpleader action. Appellants raised

the issue in the Notice of Appeal. However, Appellants failed to mention that order

at all in their Brief, much less provide a sufficient discussion to maintain the point

at issue. Appellants put forth no argument or analysis showing that the record and

the law support their contentions. Instead, Appellants’ brief focused exclusively on

their challenge to the district court order granting Appellee Prine’s plea to the

jurisdiction. 15

       The closest Appellants came to raising the issue regarding the motion to

dismiss is in the final sentence of the prayer section of Appellants’ Brief, which

states that “in the interest of justice, pursuant to TEX. R. APP. P. 29.6 Adams pray

that this Court will review pending motions for review of interlocutory orders that

14
         Sink, 364 S.W.3d at 346 (citations omitted). See also Castro, 2014 WL 1938837, at *5
(citing ERI Consulting Eng’rs v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010); Allegiance
Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d 855, 873 (Tex. App.—Fort Worth 2011, no
pet.)) (“We are under no obligation to make an appellant's arguments for her and when an issue
is inadequately briefed, lacking a substantive analysis and citation to legal authority, it presents
nothing for our review.”).
15
        Indeed, Appellants’ Brief lists Prine as an “Appellee” whereas Appellants only list Harris
County as an “Additional Part[y] to the Suit,” which is further proof that Appellants abandoned
their appeal against Harris County. Brief at i (Identity of Parties and Counsel).

                                                 7
impairs the effectiveness of the relief sought or that may be granted on appeal.”16

This is wholly insufficient to maintain a claim or provide any point of argument

against which Appellee Harris County may attempt to refute. Therefore,

Appellants have waived their appeal of the district court’s order denying

Appellants’ motion to dismiss the interpleader action.17

                                          PRAYER
       Appellants abandoned their challenge to the district court order denying

Appellants’ motion to dismiss Harris County’s interpleader action by failing to

address or provide any argument in support of their contentions in Appellants’

Brief. Therefore, Appellants have waived this argument on appeal.

       For these reasons, Appellee Harris County respectfully prays that this Court

find that Appellants have waived any challenge to the district court order denying

Appellants’ motion to dismiss, find that the district court order denying

Appellants’ motion to dismiss be affirmed, and grant any and all relief to which

Appellee Harris County shows itself entitled.

                                             Respectfully submitted,

                                             VINCE RYAN
                                             Harris County Attorney

16
       C.R. at 11.
17
        In the unlikely event that this Court disagrees that the Appellants waived their appeal of
the district court order denying Appellants’ motion to dismiss, Appellee Harris County
respectfully requests leave to supplement its Brief.

                                                8
/s/ Keith A. Toler
KEITH A. TOLER
Assistant County Attorney
State Bar No. 24088541
1019 Congress, 15th Floor
Houston, Texas 77002
Phone: (713) 274-5265
Fax: (713) 755-8924
Email: Keith.Toler@cao.hctx.net

ATTORNEY FOR APPELLEE
HARRIS COUNTY




  9
                     CERTIFICATE OF COMPLIANCE
      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this

document was produced on a computer using Microsoft Word and contains 1,767

words, as determined by the computer software’s word-count function, excluding

the portions of the document exempted by Texas Rule of Appellate Procedure

9.4(i)(1). I further certify that the form of this brief meets the requirements of

Texas Rule of Appellate Procedure 9.4.



                                     /s/ Keith A. Toler
                                     KEITH A. TOLER
                                     Assistant County Attorney




                                         10
                             CERTIFICATE OF SERVICE
       I hereby certify that on this the 29th day of July, 2015, a true and correct

copy of the foregoing was served by electronic transmission and certified mail,

return receipt requested, to Appellants Cecil and Maxine Adams, and by electronic

transmission to counsel for the other parties.

Cecil & Maxine Adams                                 Jayson Booth
5510 Rice, #1206                                     Booth Richey, LLP
Houston, Texas 77081                                 3730 Kirby Dr., Ste. 777
cecillovesmax@sbcglobal.net                          Houston, Texas 77098
Pro Se, Appellants                                   jbooth@boothricheylaw.com
Sent via certified mail and email                    Attorney for Kathleen Keese, Appellee
                                                     Sent via electronic transmission


Christin Cobe Vasquez                                Timothy J. Henderson
Office of Texas Attorney General                     Attorney at Law
P.O. Box 12548                                       6300 West Loop South, Ste. 280
Austin, Texas 78711-2548                             Houston, Texas 77401
christin.vasquez@texasattorneygeneral.gov            timjhenderson@msn.com
Attorney for Christopher A. Prine, Appellee          Attorney for Rebecca Ross, Appellee
Sent via electronic transmission                     Sent via electronic transmission




                                              /s/ Keith A. Toler
                                              KEITH A. TOLER
                                              Assistant County Attorney




                                                11
