Thomas A. Jamison and Thomas E. Lowe v. Lake Travis Inn and RV Park, Brenda Horton, Ronnie March, and Suzy March ( 2017 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00788-CV
Thomas A. Jamison and Thomas E. Lowe, Appellants
v.
Lake Travis Inn and RV Park, Brenda Horton, Ronnie March, and Suzy March, Appellees
FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-16-003787, HONORABLE TODD T. WONG, JUDGE PRESIDING
MEMORANDUM OPINION
Appellees Lake Travis Inn and RV Park, Brenda Horton, Ronnie March, and
Suzy March (collectively, the Park) gave appellant Thomas A. Jamison and his son Thomas E. Lowe
(the Plaintiffs) written notice requesting that they vacate the lot on which they were living in a
recreational vehicle. Jamison and Lowe vacated the property and later sued the Park, asserting causes
of action for “Unlawful Eviction,” “Unlawfully withholding Security Deposit,” “Harassment,”
“Intentional infliction of emotional distress,” and “Fraud.” Following a bench trial,1 the trial court
signed a final judgment ordering that the Plaintiffs take nothing on their claims and that the Park
1
The Plaintiffs represented themselves at the bench trial and on appeal. We note that, while
we construe pro se pleadings and briefs liberally, we hold pro se litigants to the same standards as
licensed attorneys and require them to comply with applicable laws and rules of procedure. See
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To do otherwise would give
pro se litigants an unfair advantage over litigants represented by counsel. See id. at 185.
take nothing on its counterclaim for attorney’s fees.2 In four appellate issues, the Plaintiffs complain
that the trial court abused its discretion in not granting them a pre-trial conference, that the trial court
did not admit all of their evidence or allow them to fully represent themselves at trial, that the trial
court was not fair and impartial, and that the trial court erred in not recognizing a landlord-tenant
relationship between the Park and the Plaintiffs. We will affirm the trial court’s final judgment.
DISCUSSION
Issue 1
In their first issue, the Plaintiffs contend that the trial court abused its discretion in
refusing to provide them with a pre-trial conference. Whether to hold a pre-trial conference is in the
trial court’s discretion. See Tex. R. Civ. P. 166. The record before us contains no indication that
the Plaintiffs ever asked for a pre-trial conference until they asserted in their motion for new trial
that the trial court should have granted them one. Therefore, we conclude that the trial court did not
abuse its discretion in not holding a pre-trial conference. Accordingly, we overrule the Plaintiffs’
first issue.
Issue 2
In their second issue, the Plaintiffs contend that the trial court erred in failing to
consider some of their pleadings and in refusing to admit some of the evidence they offered. We will
address each of these pleadings and pieces of evidence in turn.
2
The Park has not appealed the trial court’s denial of fees.
2
First, the Plaintiffs complain that the trial court never ruled on their motion for
summary judgment. However, nothing in the record before us indicates that the Plaintiffs ever
attempted to have their motion set for a hearing. Therefore, we cannot conclude that the trial court
committed reversible error in not ruling on the Plaintiffs’ motion for summary judgment. See
Goodman v. Doss, No. 13-15-00079-CV, 2016 WL 455328, at *3 (Tex. App.—Corpus Christi
Feb. 4, 2016, no pet.) (mem. op.) (“Here, Goodman did not request or set a hearing on his motions
to compel discovery, did not obtain a ruling on any of his motions, and did not file either an affidavit
explaining the need for further discovery or a verified motion for continuance prior to the summary
judgment. Accordingly, Goodman failed to preserve error, if any.”) (citations omitted); In re Archer,
No. 05-15-00020-CV, 2015 WL 128579, at *2 (Tex. App.—Dallas Jan. 9, 2015, orig. proceeding)
(mem. op.) (“A court is not required to consider a motion that has not been properly called to its
attention. The duty to procure a hearing rests on the moving party, not upon the trial judge. A
judge’s failure to set a motion for hearing, when not asked to make such a setting, is not an abuse
of discretion.”) (citations omitted); Corona v. Pilgrim’s Pride Corp., 245 S.W.3d 75, 84–85 (Tex.
App.—Texarkana 2008, pet. denied) (“Corona failed to preserve any error for our review. It was
Corona’s responsibility to request a hearing and obtain a ruling on the motion to transfer venue.
Corona waived any issue concerning venue by not requesting a hearing or ruling.”) (citation
omitted); In re Davidson, 153 S.W.3d 490, 491 (Tex. App.—Amarillo 2004, orig. proceeding) (“A
court is not required to consider a motion not called to its attention. Showing that a motion was filed
with the court clerk does not constitute proof that the motion was brought to the trial court’s
attention or presented to the trial court with a request for a ruling.”) (citation omitted).
3
The Plaintiffs also assert that the trial court ignored their “Motion to Disqualify
Attorney,” “Memorandum of Law,” and “Motion to Take Judicial Notice.” However, the Plaintiffs
filed these documents after the trial court had signed the final judgment. Moreover, nothing in the
record before us indicates that the Plaintiffs requested a hearing on these documents. Therefore,
we cannot conclude that the trial court committed reversible error in not ruling on them.
In addition, the Plaintiffs argue that they “should have been permitted to submit every
piece of evidence that they attempted to submit” at the bench trial and complain that the trial court
excluded some of their evidence. Specifically, the Plaintiffs complain that the trial court refused
to admit a “discharge paper from Austin Oaks Hospital” and “a video tapped [sic] recording of a
conversation between Appellant Thomas Jamison and Appellee.” We review the admission or
exclusion of evidence under an abuse-of-discretion standard. See Southwestern Energy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 716 (Tex. 2016); Banks v. Bank of Am., N.A., No. 03-16-00046-CV,
2017 WL 1832489, at *3 (Tex. App.—Austin May 4, 2017, no pet. h.) (mem. op.). The Plaintiffs
offered these items after resting their case, and they have not provided any legal argument concerning
their admissibility. Therefore, we cannot conclude that the trial court abused its discretion in
excluding this evidence.
The Plaintiffs also complain that the trial court refused to admit a “HUD Housing
Complaint.” When the Plaintiffs offered this document, the Park objected on the basis of relevance
and hearsay, and the trial court sustained the objection. On appeal, the Plaintiffs argue that this
document “should have been considered as evidence that Appellants[’] claims of threats to evict due
to visits from the Mental Health Expanded Mobile Crisis Unit and Travis County Sherriff’s [sic]
4
Deputies were true.” However, the Plaintiffs have not challenged the trial court’s conclusion that
the document was inadmissible hearsay. Moreover, even if the document was admissible, the
Plaintiffs have not explained how they were harmed by its exclusion. See Tex. R. App. P. 44.1(a)
(“No judgment may be reversed on appeal on the ground that the trial court made an error of law
unless the court of appeals concludes that the error complained of: (1) probably caused the rendition
of an improper judgment; or (2) probably prevented the appellant from properly presenting the case
to the court of appeals.”).
Finally, the Plaintiffs argue that the “Trial Court ignored the timing of the eviction
that occurred immediately after discharge of Appellant Thomas Lowe from the psychiatric hospital
as evidence supporting claims of discrimination for mental illness” and that the trial court “did not
even wait for the department of HUD to conclude [its] investigation to deny relief to Appellants.”
However, the Plaintiffs have not cited any legal authorities or otherwise explained why these
alleged actions constitute reversible error. Specifically, the Plaintiffs have not directed our attention
to any authority holding that the trial court was required to “wait for the department of HUD to
conclude [its] investigation” before the court could rule on the Plaintiffs’ claims.
Finding no reversible error in the Plaintiffs’ second issue, we overrule it.
Issue 3
In their third issue, the Plaintiffs contend that the trial court’s actions demonstrated
bias and “extreme prejudice” against the Plaintiffs. In support of this contention, the Plaintiffs
allege that: (1) the trial court allowed two attorneys to represent the appellees even though the
Plaintiffs did not have any notice that a second attorney would be appearing; (2) the trial court did
5
not allow Lowe “to speak and assist in representing himself as a Pro Se Litigant”; (3) the trial court
instructed Jamison to testify in narrative form but then sustained an objection that he was testifying
in narrative form; (4) the trial court sustained an objection on the ground that testimony was
repetitive when in fact it was not repetitive; (5) the trial court failed to grant the Plaintiffs’ “Motion
For New Hearing” on the ground that the appellees were represented by a second attorney without
informing the Plaintiffs beforehand; (6) although defense witnesses contradicted themselves, the
trial court “did not impeach” the witnesses and instead “allowed [the witnesses] to continue telling
lies under oath” “and never threw out this dishonest testimony”; (7) the trial court “told Appellant
to stop interrupting the witness immediately after the witness interrupted Appellant,” “admonished
Appellant not to interrupt the witness who had just interrupted him,” and “added insult to injury by
telling Appellant who was doing the questioning, not to be argumentative, when it was Appellee
who was being dishonest, evasive and argumentative as a hostile witness”; (8) the trial court
“demonstrated callous indifference to the fact that Appellees were directly responsible for the
sudden termination of crucial medical treatment that was vital to the mental health of Appellant,
Thomas Lowe”; (9) the trial court “was presented evidence that it chose to simply ignore and
its ruling does not even resemble anything akin to justice”; and (10) when the defense attorney
objected without stating the grounds for his objection, the trial court suggested the grounds and
sustained the objection.
Judicial rulings alone almost never constitute a valid basis for showing the trial
court’s bias or impartiality, and judicial remarks that are critical, disapproving, or even hostile to a
party or counsel do not demonstrate bias—nor do expressions of impatience, annoyance, or even
6
anger. See Liteky v. United States, 510 U.S. 540, 555–56 (1994); Dow Chem. Co. v. Francis,
46 S.W.3d 237, 240 (Tex. 2001); Spears v. Falcon Pointe Cmty. Homeowner’s Ass’n,
No. 03-14-00650-CV, 2016 WL 1756486, at *6 (Tex. App.—Austin Apr. 28, 2016, no pet.) (mem.
op.); Thomas v. Graham Mortg. Corp., 408 S.W.3d 581, 595–96 (Tex. App.—Austin 2013, pet.
denied). Moreover, although the Plaintiffs correctly assert that the trial court helped supply the
grounds for one of the Park’s objections and that the trial court at times expressed displeasure with
the Plaintiffs, the record reveals that the trial court also assisted the Plaintiffs and occasionally
expressed impatience or annoyance with the Park’s attorneys. We cannot conclude, based on the
record before us, that the trial court exhibited bias or impartiality. Accordingly, we overrule the
Plaintiffs’ third issue.
Issue 4
In their fourth and final issue, the Plaintiffs contend that the trial court “failed to
correctly apply the laws regarding what constitutes a property interest that creates a landlord/tenant
relationship” and failed “to recognize elements of fraud in Appellee’s lease agreement that they
claim to be a site service agreement.” The Plaintiffs also contend that the trial court “failed to
correctly apply the law with regard to security deposits.”
The elements of common-law fraud are: (1) a material representation; (2) which was
false; (3) which was known to be false when made or was made recklessly as a positive assertion
without knowledge of its truth; (4) which was intended to be relied upon; (5) which was relied upon;
and (6) which caused injury. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001);
Berger v. Flores, No. 03-12-00415-CV, 2015 WL 3654555, at *8 (Tex. App.—Austin June 12, 2015,
7
no pet.) (mem. op.). Here, the Park’s service agreement provided, “This is a Month to Month
agreement. Either party may terminate this agreement at any time, for any reason, with 30 day written
notice.” The agreement also stated, “Under no circumstances should you consider yourself a tenant
with a lease” and, “You are NOT under a landlord/tenant arrangement: THEFT OF SERVICES
APPLIES.” The Plaintiffs have not cited any relevant authority in support of their argument that the
Park’s service agreement created a landlord-tenant relationship despite its explicit statement to the
contrary. Therefore, the Plaintiffs have not established that the service agreement contained a false
material representation. Moreover, even if the agreement’s statement that it created no landlord-
tenant relationship was false, the Plaintiffs presented no evidence at trial that the Park knew that
this representation was false or was reckless as to its falsity. For these reasons, we cannot conclude
that the trial court committed reversible error in rendering a take-nothing judgment as to the
Plaintiffs’ fraud claim.
Finally, the Plaintiffs contend that the trial court should have concluded that the
Park was required to return the Plaintiffs’ security deposit. According to the Plaintiffs, “[w]hat
Appellee’s [sic] are doing is collecting money upon move-in for an electric bill that hasn’t even
been generated yet,” and “[t]his constitutes fraud.” However, the service agreement specified that
the Park would collect a security deposit that it would return to the Plaintiffs “less any amounts
you owe” and also explains how electricity payments would be made. The Plaintiffs have not cited
any authorities or made any legal arguments in support of their contention that the Park was required
to return the security deposit despite the Plaintiffs’ unpaid electric bill.
Finding no reversible error in the Plaintiffs’ fourth issue, we overrule it.
8
CONCLUSION
We affirm the trial court’s judgment.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Field and Bourland
Affirmed
Filed: July 13, 2017
9