Curtis Ray Wolf v. James Kit Shemwell, Federal Freight Systems and TCT Leasing & Rental, Inc.--Appeal from 114th District Court of Smith County

NO. 12-05-00109-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CURTIS RAY WOLF, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

JAMES KIT SHEMWELL,

FEDERAL FREIGHT SYSTEMS, INC. SMITH COUNTY, TEXAS

AND TCT LEASING & RENTAL, INC.,

APPELLEES

MEMORANDUM OPINION

Curtis Ray Wolf appeals the trial court s summary judgment entered in favor of James Kit Shemwell and Federal Freight Systems, Inc. (collectively Appellees ). Wolf raises two issues on appeal. We affirm.

Background

Wolf is an inmate proceeding pro se. Wolf was a passenger on a bus operated by the Texas Department of Criminal Justice Institutional Division. Wolf was injured when the bus on which he was a passenger collided with a tractor trailer. Shemwell, the driver of the tractor trailer, was attempting to execute a left turn when the bus struck the tractor trailer. The tractor was owned by Federal.

Wolf filed suit on January 9, 2004 against Appellees alleging causes of action for negligence, respondeat superior, liability based upon either actual or apparent authority, negligent entrustment, negligent retention, negligent hiring, negligent supervision, negligent failure to control, and negligent failure to restrict Shemwell s access to normal business hours.1

On December 20, 2004, Appellees filed a no evidence motion for summary judgment, to which Wolf responded. Wolf also filed a traditional motion for summary judgment. On January 14, 2005, the trial court granted Appellees no evidence motion. This appeal followed.

Adequacy of Briefing

In his first issue, Wolf contends that the trial court improperly granted Appellees no evidence motion for summary judgment. In his second issue, Wolf contends that the trial court erred in failing to rule on his motion for summary judgment.

A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex. App. Dallas 2004, no pet.). On appeal, as at trial, the pro se appellant must properly present its case. Id. at 678. To properly present a case on appeal, the appellant's brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities. See Tex. R. App. P. 38.1(h).

In the case at hand, to defeat Appellees no evidence motion for summary judgment, Wolf was required to present evidence supporting his causes of action for negligence, respondeat superior, liability based upon either actual or apparent authority, negligent entrustment, negligent retention, negligent hiring, negligent supervision, negligent failure to control, and negligent failure to restrict Shemwell s access to normal business hours.

In briefing his first issue, Wolf cites Texas Rule of Civil Procedure 166a(i), which sets forth generally the requirements for no evidence motion for summary judgment practice, and Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 71 (Tex. App. Austin 1998, no pet.). Jackson involved a claim for premises liability in which the defendant prevailed on its no evidence motion for summary judgment. Id. at 69. The court of appeals affirmed the trial court s summary judgment. Id. at 72. Other than further articulating the then-new no evidence practice, Jackson has no bearing on the substantive issues relevant to Wolf s appeal. Id. at 70 72.

We next consider Wolf s second issue of whether the trial court erred in failing to rule on his motion for summary judgment. In briefing this issue, Wolf cites Texas Rule of Civil Procedure 166c,2 Texas Revised Civil Statutes, article 6701c-1,3 White v. Excalibur Insurance Co., 599 F.2d 50 (5th Cir. 1979), Price v. Westmoreland,4 Integral Insurance Co. v. Lawrence Fulbright Trucking, Inc., 930 F.2d 258, 260 (2nd Cir. 1991), and 49 U.S.C.A. 14102(a)(4).

We have reviewed 49 U.S.C.A. 14102(a)(4), White,and Integral Insurance Co., none of which bear any relation to the issue of whether a trial court must rule on a party s motion for summary judgment having already signed a judgment disposing of all issues. While Rule 166a(c) sets forth under what circumstances a trial court shall grant a motion for summary judgment, Rule 166a(c) presupposes that the issues to which the motion pertains are yet unresolved. See Tex. R. Civ. P. 166a(c); see also Tex. R. Civ. P. 166a(a). Thus, Rule 166a(c) does not offer any support for Wolf s second issue.

We have little latitude on appeal and cannot remedy deficiencies in a litigant's brief. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App. Dallas 2005, no pet.). We further have no duty to perform an independent review of applicable law to determine whether the error complained of occurred. Id. Therefore, since Wolf failed to adequately brief his first and second issues on appeal, he has waived the error, if any, of which he complains. Id.; see also Tex. R. App. P. 38.1(h). Wolf s first and second issues are overruled.

Disposition

Having overruled Wolf s first and second issues, we affirm the trial court s judgment. All pending motions are overruled as moot.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(PUBLISH)

1 Appellant named TCT Leasing & Rental, Inc. as a defendant, but failed to serve TCT with process.

2 We assume Appellant intended to cite Texas Rule of Civil Procedure 166a(c) inasmuch as Rule 166(c) relates to the trial court s discretion to direct the attorneys for the parties to appear at a conference to consider a discovery schedule. See Tex. R. Civ. P. 166(c).

3 Article 6701c-1 was repealed by Acts 1995, 74th Leg., ch. 165, 24(a), eff. Sept. 1, 1995 and Acts 1995, 74th Leg., ch. 704, 31(a)(11), eff. Sept. 1, 1995. Section 1 of Acts 1995, 74th Leg., ch. 165, repealing Article 6701c-1, adopts the Transportation Code. Texas Transportation Code, chapter 641, which corresponded to Article 6701c-1, was repealed. See Acts 1997, 75th Leg., ch. 165, 30.148, eff. Sept. 1, 1997.

4 The cite Wolf supplied for Price v. Westmoreland, 787 F.2d 494, 495 96 (5th Cir. 1984), is incorrect. We are unable to locate such a case. See Tex. R. App. P. 38.1(h).