JOHN LUCKETT v. BRINKER RESTAURANT CORPORATION CHILI RESTAURANTS AND BRINKER RESTAURANT CORPORATION

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Court of Appeals of Texas, Dallas.

JOHN LUCKETT, Appellant v. BRINKER RESTAURANT CORPORATION D/B/A CHILI'S RESTAURANTS AND BRINKER RESTAURANT CORPORATION, Appellees

No. 05-09-00545-CV

Decided: January 27, 2011

Before Justices FitzGerald, Murphy, and Fillmore

MEMORANDUM OPINION

Opinion By Justice Murphy

John Luckett appeals orders of the trial court declaring him a vexatious litigant and dismissing his claims with prejudice.   We affirm the trial court's judgment.

Background

Luckett filed a pro se “complaint” against Chili's Restaurants, Inc., Brinker Restaurant Corporation, and Does 1-10 as a result of alleged food poisoning from dining at a Chili's restaurant in Huntington Beach, California.   Appellees filed a motion to declare Luckett a vexatious litigant pursuant to section 11 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.051, 11.054 (West 2002).   Luckett failed to appear at the hearing on the motion, either in person or telephonically.   The trial court granted the motion, signed an order declaring Luckett a vexatious litigant, and ordered him to post a $20,000 security bond within thirty days.   When Luckett failed to post this bond, appellees filed a motion to dismiss Luckett's claims.   Luckett again failed to appear, and based on the record, the trial court dismissed his claims with prejudice.   Luckett appealed.

After this Court granted Luckett additional time to file his brief, Luckett filed his original appellate brief on March 2, 2010.   By letter dated March 8, 2010, the Clerk of Court notified Luckett of fifteen briefing deficiencies, including his failure (1) to state concisely all issues or points presented for review;  (2) to make a succinct, clear, and accurate statement of the arguments;  (3) to include appropriate citations to authorities;  (4) to include appropriate citations to the record, and (5) to attach a complete appendix.   See Tex.R.App. P. 38.1(f), (h), (i), and (k).  Pursuant to the notice, Luckett was directed to file an amended brief correcting all deficiencies, with the warning of dismissal if he failed to do so.   On March 18, 2010, Luckett filed his “Objection to Court Clerk's 3/8/10 Defientcy [sic] Notice Re:  Brief.   Req. for Brief to Stand.   Req. for Court to Order Entire Court File(s) as Designated in Notice of Appeal;  Designation of Records to Serve as Record on Appeal with Court Reporter's Transcripts.”   Instead of amending his brief, Luckett claimed the requested information was contained in his original brief or other documents filed with this Court.   On May 17, 2010, Luckett also filed his “Responce [sic] to Appellees['] Brief on Appeal.”   Luckett never filed an amended brief addressing the deficiencies.

Discussion

Luckett appears to assert the trial court erred by declaring him a vexatious litigant and ordering him, as an indigent party, to post a $20,000 security bond;  ignoring a “(timely) filed peremptory challenge” because the trial judge was disqualified from presiding over the case;  and dismissing the matter with prejudice in violation of Luckett's “14TH AMENDMENT RIGHTS OF DUE PROCESS.”

Litigants who represent themselves are held to the same standards as litigants represented by counsel.  Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex.1978).   To hold otherwise would give pro se litigants an unfair advantage over litigants with an attorney.  Id.;  Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex.App.-Dallas 2008, no pet.).   Accordingly, Luckett must comply with the applicable laws and rules of procedure.  Mansfield, 573 S.W.2d at 185.

The law is well established that to present an issue for appeal, appellant's brief must contain, among other things, clear and concise argument for appellant's contentions with appropriate citations to authorities and the record.   See Tex.R.App. Proc. 38.1(i).   When a party fails to brief a complaint adequately, he waives the issue on appeal.  Devine v. Dallas Cnty., 130 S.W.3d 512, 513-14 (Tex.App.-Dallas 2004, no pet.).   Bare assertions of error, without citations to the record or to authority, are insufficient to preserve error for our review.   See Thedford v. Union Oil Co., 3 S.W.3d 609, 615 (Tex.App.-Dallas 1999, pet. denied).   Similarly, references to sweeping statements of general law without applicable existing legal authority are rarely appropriate and do not satisfy rule 38.  Bolling v. Farmers Branch Indep.   Sch. Dist., 315 S.W.3d 893, 896 (Tex.App.-Dallas 2010, no pet. h.).

Luckett does not cite to the record in his original brief.   The only citations to legal authority are the United States Constitution and a 1991 case from a California appellate court in which he was declared a vexatious litigant and ordered not to file any new litigation in California without first obtaining leave of court.   See In re Luckett, 283 Cal.Rptr. 312, 314 (Cal.Dist.Ct.App.1991).   He also does not attempt to correct the deficiencies addressed in the Clerk of Court's March letter;  instead, Luckett states that the Clerk of Court was “erronous [sic],” cites to the “entire COURT RECORD IN THIS MATTER” for relevant documents, and again references the Constitution as the legal authority on which he bases his appeal.   If we look to Luckett's response and construe it as an amended brief, Luckett still fails to direct the Court to any record citations or to cite any additional authority other than another case from Nevada that confirms a trial court's declaration Luckett is a vexatious litigant, see Jordan v. State, 110 P.3d 30, 45-46 (Nev.2005) (per curiam), abrogated on other grounds, Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d 670, 672 n.6 (Nev.2008), and the definitional section of the vexatious litigants chapter.   See Tex. Civ. Prac. & Rem.Code Ann. § 11.001(2) (defining “Litigation”).

After reviewing Luckett's original brief, objection, and response, we conclude Luckett has failed to brief his complaints adequately and has failed to preserve error for our review.   See Thedford, 3 S.W.3d at 615-16.   He therefore has waived any issue on appeal.  Devine, 130 S.W.3d at 513-14.

Conclusion

We overrule Luckett's issues and affirm the trial court's judgment.

090545F.P05

MARY MURPHY JUSTICE