Eduardo A. Jonson v. Long Duong and Remy Grousson ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
EDUARDO A. JONSON, § No. 08-20-00169-CV
Appellant, § Appeal from the
v. § 261st Judicial District Court
LONG DUONG and REMY GROUSSON, § of Travis County, Texas
Appellees. § (TC# D-1-GN-19-006950)
OPINION
Appellant Eduardo A. Jonson appeals from the trial court’s order denying his motion to
file an out-of-time amended petition, and dismissing his lawsuit against Appellees, Long Duong
and Remy Grousson.1 In three issues, Jonson contends that his rights as a pro se litigant were
denied by the trial court’s order; that the trial court judge who issued the final order dismissing his
case failed to recuse herself; and that the two judges who issued orders in his case failed to
adequately perform their duties as judicial officers.2 For the reasons set forth below, we affirm
the trial court’s order.
1
This case was transferred from our sister court in Austin, and we decide it in accordance with the precedent of that
court to the extent required by TEX.R.APP.P. 41.3.
2
Appellees’ counsel informed this Court that they chose not to file a responsive brief, stating that they believe
Jonson’s appeal is “frivolous,” and that they have already “spent thousands of dollars defending this case and simply
do not have the resources to pay to defend this litigation at the appellate level.”
I. FACTUAL AND PROCEDURAL BACKGROUND
Acting as his own attorney, Jonson filed an original petition in October 2019 alleging that
Appellants committed various breaches and tortious actions as to a business partnership in which
the parties had been members. In December 2019, Appellees answered the petition, denied
Jonson’s claims, and filed special exceptions under Rule 91 of the Texas Rules of Civil Procedure.
Those exceptions asserted that Jonson’s pleadings were defective.3 In addition, Appellees moved
to dismiss the petition under Rule 91a, contending that the claims in the petition had no basis in
law or fact. 4 In response, on February 14, 2020, Jonson filed what he labeled as a “verified
amendment” to his petition, totaling 33 pages, with several documents attached.
A. Judge Yelenosky’s Special Exceptions Ruling
On February 20, 2020, Retired District Court Judge Stephen Yelenosky heard and granted
the Rule 91 exceptions. The judge’s order found that Jonson’s original petition, as well as his
verified amendment, were both “defective and must be replead with specificity such that it is clear
from the pleading which facts are intended to support which causes of action.” Judge Yelenosky’s
order also required Jonson to replead his petition before March 3, 2020, and set a ten-page limit.
Judge Yelenosky did not rule on Appellees’ motion to dismiss under Rule 91a.
3
Rule 91 provides that: “A special exception shall not only point out the particular pleading excepted to, but it shall
also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other
insufficiency in the allegations in the pleading excepted to.” TEX.R.CIV.P. 91.
4
Rule 91a provides in part that: “Except in a case brought under the Family Code or a case governed by Chapter 14
of the Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds that it
has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with
inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no
basis in fact if no reasonable person could believe the facts pleaded.” TEX.R.CIV.P. 91a.
2
B. Appellees’ Second Motion to Dismiss
On March 9, 2020, and after Jonson failed to replead his petition, Appellees filed a second
motion to dismiss based the failure to comply with the trial court’s February order. They also
renewed their argument that Jonson’s petition had no basis in law or fact. Appellees filed a
notice of hearing that same day, stating that a hearing had been scheduled for March 31, 2020, but
mistakenly stated in their certificate of service that they had served Jonson with a copy of the
notice on March 9, 2019. On March 20, 2020, Jonson filed a “motion to quash” Appellees’
second motion to dismiss and the hearing notice, pointing out the discrepancy in the date of
service.5 In response, Appellees filed a corrected certificate of service, stating that there was a
typographical error in their original certificate, and that they actually served Jonson with a copy of
the notice of hearing on March 9, 2020 via electronic service. On May 28, 2020, Appellees
submitted a proposed order granting their second motion to dismiss to the trial court.
C. Jonson’s Motion to File an Out-of-Time Amended Petition
In the interim, on May 12, 2020, Jonson filed a 10-page “Second Amended Verified
Petition,” together with 11 pages of exhibits. And on June 1, 2020, Jonson filed a “Motion For
Leave to File[] Out of Time Second Amended Verified Petition with Affidavit of Exhibits in
Support.” In his motion, Jonson sought leave to file his out-of-time petition based on “excusable
neglect,” alleging, among other things that he did not timely receive notice of the trial court’s
February 20th order and was unaware of the order until he received Appellees’ second motion to
5
In his motion to quash, Jonson also complained that Appellees’ first “91a motion” did not comply with some of the
procedural safeguards attendant to Rule 91a motions to dismiss. Because Judge Yelenosky did not grant the Rule
91a motion (rather, only the Rule 91 motion) we omit any discussion of this portion of Jonson’s response.
3
dismiss.6 Jonson, however, acknowledged that he was at the February 20th hearing at which
Judge Yelenosky ruled on Appellees’ request for special exceptions, and he also submitted copies
of his email correspondence with Appellees’ counsel about the form of a proposed order
documenting Judge Yelenosky’s ruling. The proposed order, which Judge Yelenosky ultimately
signed, found Jonson’s original and amended pleadings to both be defective and set forth the March
3, 2020 deadline for Jonson to file his amended pleading.
D. Judge Livingston’s Final Order
On June 23, 2020, Judge Lora Livingston, Presiding Judge of the 261st District Court,
signed a final order, denying Jonson’s motion to file his out-of-time second verified petition, and
granting Appellees’ motion to dismiss due to Jonson’s failure to timely file an amended petition.
Judge Livingston also formally denied Appellees’ motion to dismiss under Rule 91a, and their
request for attorney’s fees.
II. ISSUES ON APPEAL
An overarching theme in Jonson’s appeal, as reflected in his first and third issues, is that
by granting Appellees’ special exceptions and dismissing his lawsuit, the trial court judges denied
him his rights as a pro se litigant and failed to abide by their duties as judicial officers to ensure
that he was afforded his right to be heard. We combine our discussion of these two issues. We
discuss separately his second issue in which he contends that Judge Livingston failed to recuse
herself due to an alleged bias or prejudice against him.
6
In his motion, Jonson once again argued that Appellees did not comply with Rule 91a.5(b) of the Texas Rules of
Civil Procedure due to their failure to challenge the adequacy of his first amended petition in their first motion to
dismiss. In addition, Jonson referred to a March 6, 2020 emergency order issued by Travis County Judge Sarah
Eckhardt regarding the Covid-19 pandemic, which among other things, declared “all rules and regulations that may
inhibit or prevent prompt response to this threat suspended for the duration of the incident.” Jonson did not, however,
explain how this emergency order affected his ability to timely file his amended petition.
4
III. STANDARDS FOR PRO SE LITIGANTS
To begin, we agree with Jonson that courts are required to construe the pleadings of pro se
litigants to ensure that they are afforded a fair opportunity to be heard. See Feist v. Gutierrez,
No. 03-18-00474-CV, 2019 WL 3436996, at *1, n.2 (Tex.App.--Austin July 31, 2019, no pet.)
(mem. op.) (court will construe pleadings liberally “so as to obtain a just, fair and equitable
adjudication of the parties’ rights.”), quoting Veigel v. Texas Boll Weevil Eradication Found., Inc.,
549 S.W.3d 193, 195 n.1 (Tex.App.--Austin 2018, no pet.); see also Martinez v. Ward, 303 S.W.3d
326, 328 (Tex.App.--El Paso 2009, no pet.) (recognizing that court must construe pro se litigant’s
pleadings “liberally”). Nevertheless, as Jonson himself appears to recognize, pro se litigants are
not exempt from complying with applicable laws and procedural rules. See Kalil v. Gen. Motors
Corp., No. 08-00-00263-CV, 2002 WL 265818, at *2 (Tex.App.--El Paso Feb. 26, 2002, no pet.);
see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (recognizing that pro se litigants are
not exempt from the rules of procedure); Feist, 2019 WL 3436996, at *1, n.2 (recognizing that a
court must require “pro se litigants to comply with all applicable laws and rules of procedure.”).
To hold otherwise would be to give pro se litigants an unfair advantage over litigants represented
by counsel. See Gonzalez v. Magana, No. 03-14-00387-CV, 2015 WL 4997868, at *2 (Tex.App.-
-Austin Aug. 18, 2015, pet. denied) (mem. op.), citing Mansfield State Bank v. Cohn, 573 S.W.2d
181, 185 (Tex. 1978); see also Martinez, 303 S.W.3d at 328 (recognizing that if pro se litigants
were not required to comply with applicable laws and rules of procedure, they would be given an
unfair advantage over parties represented by counsel). As the Texas Supreme Court has
recognized, “[h]aving two sets of rules—a strict set for attorneys and a lenient set for pro se
parties—might encourage litigants to discard their valuable right to the advice and assistance of
counsel.” Wheeler, 157 S.W.3d at 444.
5
IV. THE TRIAL COURT’S RULINGS
In Issue One, Jonson contends that both Judge Yelenosky and Judge Livingston failed to
make a “reasonable accommodation” for his pro se litigant status in issuing their rulings,
insinuating that his case was dismissed due to his unfamiliarity with procedural rules, and that in
turn, this abridged his “substantive” right to have the case heard on the merits.7 And relatedly, in
Issue Three, Jonson alleges that both judges failed to adhere to and abide by their “duties” as state
court judges to follow the law and the Texas Code of Judicial Conduct in making their rulings.8
We conclude, however, that Jonson did not adequately brief either of these two issues.
In general, a trial court has the discretion to grant special exceptions when it finds a
plaintiff’s pleadings defective, and similarly has the discretion to dismiss a case when a plaintiff
refuses or fails to cure the defects. See Perry v. Cohen, 285 S.W.3d 137, 142 (Tex.App.--Austin
2009, pet. denied), citing Cole v. Hall, 864 S.W.2d 563, 566 (Tex.App.--Dallas 1993, writ dism’d
w.o.j.) (en banc); see also Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 290-91
(Tex.App.--Houston [1st Dist.] 1992, no writ) (after trial court granted special exceptions and
Appellant refused to amend his pleadings, the trial court did not abuse its discretion in dismissing
the appellant’s action). Under our standard of review, Jonson would need to show an abuse of
that discretion, meaning that the trial court acted without reference to any guiding rules or
7
Jonson also complains that the trial court violated his rights as a pro se litigant when it dismissed a related lawsuit
that he filed in 2017. But the 2017 dismissal order is not part of the present appeal.
8
In his brief, Jonson cites various Canons in the Texas Code of Judicial Conduct, which he apparently believes the
trial court judges violated, including Canon 3(B)(8), which provides in part that a “judge shall accord to every person
who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.” TEX.CODE
JUD.CONDUCT, Canon 3(B)(8) reprinted in TEX.GOV’T CODE ANN., tit. 2, subtit. G, app. C. Jonson further contends
that the judges’ alleged Code violations may be cause for their removal from office in accordance with the Texas
Constitution. See TEX.CONST. ART. V, § 1-a(6)(A). The method for removing a judge from office, however, is set
forth in the Constitution, and this Court lacks the authority to consider such an issue.
6
principles, that is, it acted arbitrarily or unreasonably. See Low v. Henry, 221 S.W.3d 609, 614
(Tex. 2007); Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
Jonson, however, has provided no argument or citation to authority to support his
contention that Judge Yelenosky abused his discretion in granting the special exceptions, or that
Judge Livingston erred in subsequently dismissing his lawsuit for failure to timely file an amended
petition. Instead, he simply makes a broad and conclusory statement that the judges were not
“lenient” or “solicitous” enough in making their rulings given his pro se status, and that they
therefore failed to adequately perform their judicial duties to ensure that he had a chance to be
heard.
Rule 38.1 of the Texas Rules of Appellate Procedure expressly requires an appellant’s
brief--even one filed by a pro se litigant--to state “all issues or points presented for review” and to
contain “a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” See Martinez, 303 S.W.3d at 328, quoting TEX.R.APP.P. 38.1(f),
(i). This requirement is not satisfied by merely uttering brief conclusory statements unsupported
by legal citations, and the “[f]ailure to cite legal authority or provide substantive analysis of the
legal issue presented results in waiver of the complaint.” Valadez v. Avitia, 238 S.W.3d 843, 845
(Tex.App.--El Paso 2007, no pet.); see also Rader v. Berry, No. 03-11-00810-CV, 2013 WL
6665075, at *1 (Tex.App.--Austin Dec. 11, 2013, no pet.) (mem. op.). As a reviewing court, we
have “no duty—or even right—to perform an independent review of the record and applicable law
to determine whether there was error.” Martinez, 303 S.W.3d at 328, quoting Valadez, 238
S.W.3d at 845 (citations omitted). Were we to do so, even on behalf of a pro se appellant, “we
would be abandoning our role as neutral adjudicators and become an advocate for that party.”
Valadez, 238 S.W.3d at 845. And when an appellant does not adequately brief an issue on appeal
7
in accordance with Rule 38.1, any error that may have occurred in the trial court is waived. See
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 880-81 (Tex. 2010); see also J.C.
Gen. Contractors v. Chavez, 421 S.W.3d 678, 681 (Tex.App.--El Paso 2014, pet. denied) (when a
party fails to brief a complaint adequately, it waives the issue on appeal); Howell v. Texas Workers’
Comp. Comm’n, 143 S.W.3d 416, 443 (Tex.App.--Austin 2004, pet. denied) (appellant’s failure to
cite any authority in support of its argument waives the argument and leaves appellate court with
nothing to review). Thus, because Jonson has failed to make a clear and concise argument,
supported by appropriate citation to legal authority to support his claim that the trial court judges
erred in making their rulings, he has disregarded the requirements of Rule 38.1 and has therefore
waived both Issues One and Three.
Jonson’s Issues One and Three are overruled.
IV. ISSUE TWO: RECUSAL OF THE TRIAL JUDGE
In Issue Two, Jonson contends that Judge Livingston erred by failing to recuse or disqualify
herself from hearing his case, asserting that she was not “fair or impartial” in dismissing his lawsuit
and refusing to grant his motion to file his out-of-time pleading. In support of his argument,
Jonson cites Rule 18b of the Texas Rules of Civil Procedure, which sets forth the grounds for both
recusals and disqualifications. Rule 18b provides, in part, that a judge must recuse when “the
judge’s impartiality might reasonably be questioned” or when “the judge has a personal bias or
prejudice concerning the subject matter or a party.” See TEX.R.CIV.P. 18b(b)(1), (2). But a
litigant claiming that a judge is biased or prejudiced must timely move to recuse the judge in the
trial court in accordance with Rule 18a; otherwise the issue is waived on appeal.9 See Nairn v.
9
Unlike recusal issues, disqualification is absolute, and therefore a party may raise an issue about whether a judge is
constitutionally disqualified at any time. See generally Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148
8
Killeen Indep. Sch. Dist., 366 S.W.3d 229, 250-51 (Tex.App.--El Paso 2012, no pet.) (recognizing
that the failure to comply with Rule 18a’s mandatory requirement of filing a timely motion to
recuse waives any right to complain thereafter); see also Esquivel v. El Paso Healthcare Sys., Ltd.,
225 S.W.3d 83, 88 (Tex.App.--El Paso 2005, no pet.) (a party who fails to file a motion which
complies with Rule 18a waives the right to complain of a judge’s refusal to self-recuse), citing In
re Union Pacific Resources Co., 969 S.W.2d 427, 428 (Tex. 1998). Our record contains no
motion to recuse, and Jonson does not contend in his brief that he raised Judge Livingston’s alleged
bias below. The issue is not preserved for our review.
Moreover, even if we were to consider the issue, we note that Jonson does not explain why
he believes that Judge Livingston was biased or impartial, other than to express his dissatisfaction
with her rulings in his case. However, a dissatisfaction with a judge’s rulings does not serve as a
basis to recuse a judge, unless a reasonable person could conclude that the rulings evidence such
“a high degree of favoritism or antagonism that render[ed] fair judgment impossible.” Bettwieser
v. Jeffery, No. 05-18-01266-CV, 2020 WL 4435307, at *5 (Tex.App.--Dallas Aug. 3, 2020, no
pet.) (mem. op.); see also Liteky v. United States, 510 U.S. 540, 555 (1994) (recognizing that
“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” and
opinions that a judge forms during trial do not necessitate recusal “unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.”). Jonson has alleged
no facts to support a finding that Judge Livingston harbored any deep-seated antagonism toward
him that would have justified recusal.
(Tex. 1982). At any rate, a judge is only disqualified for having an interest in the case, a relationship within a certain
degree to a party, or having served as counsel in the case. See TEX.CONST. ART. V, § 11; TEX.R.CIV.P. 18b(a).
Jonson has made no suggestion that Judge Livingston was disqualified based on any of these grounds.
9
Jonson’s Issue Two is Overruled.
VI. CONCLUSION
The trial court’s judgment is affirmed.10
JEFF ALLEY, Justice
December 23, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
10
In his prayer for relief, Jonson requests that we not only reverse the trial court’s order, but that we issue a writ of
mandamus under section 15.0642 of the Texas Civil Practices and Remedies Code to “enforce a mandatory-venue
provision” to protect his rights as a pro se litigant. “A party may apply for a writ of mandamus with an appellate
court to enforce the mandatory venue provisions of this chapter.” TEX.CIV.PRAC.& REM.CODE ANN. § 15.0642.
Jonson, however, cannot complain of the venue that he selected in filing his lawsuit, nor does he cite any applicable
mandatory venue provisions.
10