Gidget Lewis v. Wentwood St. James, L.P., e , 539 F. App'x 332 ( 2013 )

Case: 12-20503 Document: 00512346199 Page: 1 Date Filed: 08/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2013
No. 12-20503
Summary Calendar Lyle W. Cayce
Clerk
ALTON MOYE; LINDA JOHNSON,
Plaintiffs-Appellants
v.
WENTWOOD ST. JAMES, L.P.; ST. JAMES APARTMENTS; ST. JAMES
APARTMENTS; AMERICAN MANAGEMENT SERVICES CENTRAL, L.L.C.,
doing business as Pinnacle; GRAOCH ASSOCIATES; WENTWOOD ST. JAMES
PARTNERS, L.L.C.; WANDA-1, GP, INC.,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CV-2017
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Alton Moye and Linda Johnson move this court for leave to proceed in
forma pauperis (IFP) in their appeal of the district court’s dismissal of their
claims due to lack of standing. An IFP movant must demonstrate that he or she
is a pauper and that the appeal is not frivolous. Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982). Moye and Johnson also move to seal their IFP motions.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-20503 Document: 00512346199 Page: 2 Date Filed: 08/19/2013
No. 12-20503
Gidget Lewis’s appeal was previously dismissed for want of prosecution. All of
the plaintiffs alleged in their complaint that the defendants were liable under
the Texas wrongful death statute and pursuant to a survival action for the death
of Andrea Lewis, who was Gidget’s son and Moye and Johnson’s grandson.
We review the issue of standing de novo. Scottsdale Ins. Co. v. Knox Park
Constr., Inc., 488 F.3d 680, 683 (5th Cir. 2007). In their appellate brief, Moye
and Johnson allege for the first time on appeal that they raised Andrea since he
was two years old and Gidget designated them as Andrea’s managing
conservators by executing an irrevocable power of attorney. They argue that
they should therefore be treated as if they were Andrea’s parents. We generally
do not consider arguments raised for the first time on appeal. Stewart Glass &
Mirror, Inc. v. U.S. Auto Glass Discount Ctrs, Inc., 200 F.3d 307, 316-17 (5th Cir.
2000). Even if we were to consider this argument, Moye and Johnson have failed
to show that they have standing to sue as conservators under either the Texas
wrongful death statute or in a survival action. Pratho v. Zapata, 157 S.W.3d
832, 846 (Tex. App. 2005); Taylor v. Parr, 678 S.W.2d 527, 529 (Tex. App. 1984).
Although they also argue in their reply brief for the first time that they have the
right under a power of attorney to sue on behalf of Andrea and/or Gidget, we
cannot consider an argument based upon facts that were not before the district
court at the time of the challenged ruling. See Taita Chem. Co. v. Westlake
Styrene Corp., 246 F.3d 377, 384 n.9 (5th Cir. 2001); Theriot v. Parish of
Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Accordingly, Moye and
Johnson have not shown that their appeal involves “legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citation omitted).
Moye and Johnson’s motions for leave to proceed IFP on appeal are
DENIED, their motion to seal their IFP motions is DENIED, and their appeal
is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
2