Lisa Atkins-January v. State Office of Risk Management ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00439-CV
____________________
LISA ATKINS-JANUARY, Appellant
V.
STATE OFFICE OF RISK MANAGEMENT, Appellee
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-197,001
MEMORANDUM OPINION
Lisa Atkins-January (January or Appellant) filed this appeal complaining of
an order granting summary judgment in favor of the Texas State Office of Risk
Management (SORM or Appellee) and dismissing all of Appellant’s workers’
compensation claims with prejudice. We affirm.
BACKGROUND
January is a former employee of the Texas Department of Criminal Justice
(TDCJ). SORM serves as the workers’ compensation insurance carrier for TDCJ.
1
On November 17, 2012, while employed by TDCJ, January sustained a work-related
injury when she tripped and fell. After pursuing a workers’ compensation claim, a
hearing officer of the Texas Department of Insurance–Division of Workers’
Compensation (“the Division”) concluded as follows:
The credible evidence established that the compensable injury
includes a right elbow contusion, a left elbow contusion, a left hip
injury, and a right ankle sprain/strain. The credible evidence did not
establish that the compensable injury includes left knee internal
derangement and an HNP at L4-L5.
On December 16, 2014, the hearing officer signed a decision and order that
contained findings of fact and conclusions of law. The decision explained that
[t]he claimant did not present a doctor’s testimony or written
statement which explains how the on-the-job accident/mechanism of
injury caused or aggravated these two conditions. As a result, she failed
to prove that the compensable injury includes left knee internal
derangement or an HNP at L4-L5.
The Appeals Panel of the Division subsequently affirmed the hearing officer’s
decision and order, making the hearing officer’s decision the “final decision”
effective March 9, 2015.
January then filed the instant lawsuit in April of 2015, seeking judicial review
of the Division’s final decision with respect to the extent of her injuries caused by
the on-the-job accident in 2012. SORM filed an answer and propounded written
2
discovery seeking, in relevant part, information related to the causation of January’s
claimed conditions.
SORM filed a no-evidence motion for summary judgment in August of 2016,
after the applicable discovery period had expired. Therein, SORM argued that
. . . no evidence has been produced or disclosed and none exists[]
which could support the conclusion, within a reasonable degree of
medical probability, that the conditions claimed by the Plaintiff of left
knee internal derangement and HNP at L4-L5 would not have resulted
or have been aggravated but for her work-related injury of November
17, 201[2]. As such, given the absolute lack of evidence in support of
causation of the claimed medical conditions in this case, an essential
element to the Plaintiff’s claim, Defendant is entitled to summary
judgment pursuant to Rule 166a(i) of the Texas Rules of Civil
Procedure.
January filed no response to the motion for summary judgment. After a hearing, the
trial court entered a “Final Summary Judgment” granting summary judgment in
favor of SORM, affirming the final decision of the Division and “dispos[ing] of all
claims and all parties[.]” Appellant timely filed a notice of appeal.
ANALYSIS
Initially, we note that we must construe Appellant’s brief liberally as
Appellant appears pro se in this appeal. See Sterner v. Marathon Oil Co., 767 S.W.2d
686, 690 (Tex. 1989). Nevertheless, pro se litigants must still comply with the
briefing rules, applicable laws, and rules of procedure. See Washington v. Bank of
3
N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no. pet.) (citing Mansfield
State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)).
Under the Texas Rules of Appellate Procedure, an appellant’s brief is required
to contain “a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” Tex. R. App. P. 38.1(i). “Rule 38 requires
[a party] to provide us with such discussion of the facts and the authorities relied
upon as may be requisite to maintain the point at issue.” Tesoro Petroleum Corp. v.
Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.]
2002, pet. denied). When the appellate issue is unsupported by argument or lacks
citation to the record or legal authority, nothing is presented for review. See Valadez
v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.); Nguyen v.
Kosnoski, 93 S.W.3d 186, 188 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Our
sister court has explained as follows:
It is the Appellant’s burden to discuss her assertions of error. An
appellate court has no duty—or even right—to perform an independent
review of the record and applicable law to determine whether there was
error. 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 (citations omitted). Accordingly, an appellant may
forfeit error through her failure to brief adequately. See Fredonia State Bank v. Gen.
Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (“error may be waived by
4
inadequate briefing[]”); McKellar v. Cervantes, 367 S.W.3d 478, 484 n.5 (Tex.
App.—Texarkana 2012, no pet.) (“Bare assertions of error, without argument or
authority, waive error.”); Washington, 362 S.W.3d at 854-55; In re Lester, 254
S.W.3d 663, 668 n.3 (Tex. App.—Beaumont 2008, orig. proceeding). If a party fails
to advance a viable argument on appeal with citations to appropriate authority, an
appellate court is not required to conduct an independent review of the record and
applicable law to determine whether any error occurred. See Happy Harbor
Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.—Houston [1st
Dist.] 1995, no writ) (“We will not do the job of the advocate.”).
In this matter, Appellant’s brief consists of one page that does not identify a
legal issue and does not assert a point of error supported by “clear and concise”
argument.1 Moreover, Appellant has provided no record references nor any citations
to relevant legal authority. We conclude that, due to the inadequacy of her brief,
Appellant has waived her issues on appeal. See Tex. R. App. P. 38.1(i); Fredonia
State Bank, 881 S.W.2d at 284. Finding that nothing has been preserved for our
1
Appellant attaches numerous exhibits to her brief. A reviewing court may
not consider evidence that was not before the trial court at the time it made its
decision. See Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961). With limited
exceptions not relevant to this appeal, an appellate court may not consider materials
outside the appellate record. See In re K.M., 401 S.W.3d 864, 866 (Tex. App.—
Houston [14th Dist.] 2013, no pet.).
5
review, we affirm the trial court’s judgment. See Martinez v. El Paso Cty., 218
S.W.3d 841, 845 (Tex. App.—El Paso, 2007, pet. struck); see also Washington, 362
S.W.3d at 854-55.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on June 20, 2017
Opinion Delivered August 3, 2017
Before McKeithen, C.J., Kreger and Johnson, JJ.
6