Stangel v. Fetterly & Gordon PA ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10981
Summary Calendar
FRANK JOHN STANGEL,
Plaintiff-Appellant,
versus
FETTERLY & GORDON PA; GARY J. GORDON,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(00-CV-1509)
September 20, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Frank John Stangel appeals the dismissal of his complaint
against Fetterly & Gordon and Gary Gordon as time-barred. He argues
that the district court should have applied equitable tolling based
upon Appellees’ failure to return records from a previous lawsuit.
We affirm.
We reject Stangel’s argument that the limitations period
should have been equitably tolled based upon Fetterly & Gordon’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
alleged failure to return certain records. We apply equitable
tolling only in rare and exceptional circumstances,1 and the party
who invokes equitable tolling bears the burden of proof.2 Stangel
failed to cite any legal authority supporting his argument and did
not explain why the failure to return certain records prevented him
from filing this complaint within the limitations period. Although
we liberally construe briefs of pro se litigants, pro se parties
still must brief the issues.3 Indeed, Stangel’s complaint indicates
that he was aware of sufficient facts to know that his causes of
action against Appellees accrued in December 1991 when Gordon
withdrew from representing him.
Stangel also argues that the district court erred in relying
on extrinsic evidence in ruling on the motion to dismiss and should
have applied Rule 56 of the Federal Rules of Civil Procedure. The
district court’s determination that the action was barred by the
applicable limitations period was based on the facts alleged in
Stangel’s complaint, and Stangel has failed to show that the
district court considered extrinsic evidence in reaching its
decision.
We also reject Stangel’s argument that the district court
erred in dismissing his case prior to issuing a scheduling order
1
Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002).
2
Id.
3
Castro Romero v. Becken, 256 F.3d 349, 354 n.2 (5th Cir.
2001) (quoting Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995)).
and denying his motion for mediation. The district court has
discretion to control its docket by deciding an issue that was
dispositive of the case before reaching any other issues,4 and it
did not abuse its discretion here.
For the first time on appeal, Stangel argues that the district
court erred in allowing Linda Coffee, one of his attorneys in the
district court, to represent him despite being suspended by the
Texas Bar Association. An appellant may not raise a new issue for
the first time on appeal.5
Stangel’s motion for permission to file a reply brief appendix
is GRANTED.
AFFIRMED.
4
Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 218
(5th Cir. 1998).
5
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999).