In the COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS. No CV. DANIEL GOMEZ, Appellant. RON BRACKETT, ET AL.

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1 In the COURT OF APPEALS 5th Court of Appeals FILED: 04/03/ :00 Lisa Matz, Clerk FIFTH DISTRICT OF TEXAS AT DALLAS No CV DANIEL GOMEZ, Appellant V. RON BRACKETT, ET AL., Appellees On Appeal from Cause No. DC E in the 101 st Judicial District Court of Dallas County, Texas BRIEF OF APPELLEES HERALD, FARISH & HUGHES Dan D. McClain State Bar No E. Lamar Blvd., Ste. 250 Arlington, Texas Telephone: (817) Facsimile: (817) ATTORNEYS FOR APPELLEES, RON BRACKETT AND ROSE ROCHA 1.

2 L I S T OF PARTIES AND THEIR COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), the following are the parties to the trial court's final judgment being appealed and their counsel: 1. Appellant Daniel Gomez; 2. Counsel for Appellant Daniel Gomez, pro se; 5836 Ravendale Lane Dallas, Texas Appellees Ron Brackett and Rose Rocha; 4. Counsel for Appellees Dan D. McClain (appellate counsel & trial counsel) Herald, Farish & Hughes, 2301 E. Lamar Blvd., Suite 250 Arlington, Texas 76006; 5. Trial Judge The Honorable Martin Lowy, Presiding Judge of the 101st Judicial District Court in and for Dallas County, Texas. For clarity and convenience, Appellant Daniel Gomez will be referred to as "Gomez"; Appellees Ron Brackett and Rose Rocha will be referred to collectively as "the landlord"; and the Honorable Martin Lowy, Presiding Judge of the 101st Judicial District Court of Dallas County, Texas, will be referred to as "the trial court." 1.

3 TABLE OF CONTENTS LIST OF PARTIES AND THEIR COUNSEL... I TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 ISSUES PRESENTED FOR REVIEW... 2 STATEMENT OF FACTS... 3 SUMMARY OF ARGUMENT... 4 ARGUMENTS AND AUTHORITIES... 4 A. Appellants five issues presented for review make no sense, and have nothing to do with the trial court granting a directed verdict B. F r i v o l o u s Ap p e a l... CONCLUSION AND PRAYER... 9 CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Cases Texas Department of Transportation v. Beckner, 74 S.W. 3 rd 98 ( Tex. App. Waco 2002)... 6 Chapman v. Hootman, 999 S.W. 2d 118 (Tex. App. - Houston [14 th Dist.] 1999)... 6 In the Matter of the Marriage of Fredye Mac Long ( Thornburg), 946 S.W.2d 97 (Tex. App. - Texarkana 1997)... 6 Birdo v.holbrook, 775 S.W.2d 411 (Tex. App. Fort Worth 1998, writ denied)... 7 Elmcreek Villas v. Beldon Roofing, 940 S.W.2d 150 (Tex. App.- San Antonio 1996, no writ)... 7 Juku v. Middleton, 20 S.W.3d 176 (Tex. App.- Dallas 2000, pet.denied )... 8 Brown v. Texas Employment Commission, 801 S. W. 2 d 5 ( T e x. A p p. - H o u s t o n [ 1 4 th D i s t. ] 1 9 9, w r i t d e n i e d )... 8 iii

5 STATEMENT OF THE CASE This appeal arises from cause number DC E, styled Daniel Gomez v. Ron Brackett and Rose Rocha, in the 101st Judicial District Court of Dallas County, Texas, the Honorable Martin Lowy presiding. This case arises out of the eviction attempts and eventual eviction of Gomez from his apartment at the landlords apartment complex, Thunderbird Apartments. After discovery was conducted and Gomez made several amendments to his Petition, he finally went to trial with one cause of action against the landlord, Intentional Infliction of Emotional Distress ( IIED ). A jury trial was held in the 101 st District Court and at the conclusion of Gomez case in chief counsel for Appellees made a motion for directed verdict and the trial court granted the landlords motion on the grounds Gomez failed to present sufficient evidence to support his cause of action for IIED. Gomez seems to contend on appeal the trial court erred in granting directed verdict, because (1) the trial court lacked subject-matter jurisdiction over the Appellees counterclaims against Amy Dill and appellant (2) the evidence negates the Appellees right to judgment (3) the evidence establishes the Appellant s right to judgment as a matter of law (4) the trial court lacked both personal and subject matter jurisdiction over the Appellees counterclaim against Amy Dill and (5) the Appellees criminal counterclaim constitutes a judicial admission that the Appellee conduct was extreme and outrageous as a matter of law. 1.

6 ISSUES PRESENTED FOR REVIEW Gomez appeal presents the following issues for the Court's review: 1. Does Gomez appeal make any sense at all. 2. Is Gomez appeal nothing more than a frivolous appeal. 2.

7 STATEMENT OF FACTS On or about April 19, 2011 this case proceeded to jury trial in the 101 st District Court for Dallas County. A jury was selected and the case proceeded on Appellant s one cause of action for IIED. Gomez had the burden of proving each and every element of IIED and in his case in chief failed to do so. Subject matter jurisdiction has nothing to do with this case. Appellees did not have any counterclaim against Amy Dill. Gomez failed to produce sufficient evidence at trial in his case in chief to support his claim of IIED as found by the trial court. There is no issue concerning personal and subject matter jurisdiction as Appellees had no counterclaim against Amy Dill but only put forth affirmative defenses at trial. Furthermore, there was no criminal counterclaim put forth by Appellees. In short, Appellants appeal and issues presented for review are nonsensical, frivolous, and are confusing in light of the trial court s record on appeal. 3.

8 SUMMARY OF THE ARGUMENT Appellants five issues presented for review have absolutely nothing to do with the trial court s granting of a directed verdict at the close of Gomez evidence presented in the trial court. None of the five issues presented for review by Appellant were ever brought up in the trial court as issues prior to directed verdict being granted by the trial court. Appellant raises issues involving subject matter and personal jurisdiction which have nothing to do with issues in this case. Appellant claims there was a counterclaim against Amy Dill which never existed. Appellant claims Appellees had a criminal counterclaim, but there is no such thing as a criminal counterclaim in a civil lawsuit. Appellant s brief and argument is nonsensical and constitutes a frivolous appeal. ARGUMENTS AND AUTHORITIES A. Appellant lists five issues presented for review, however none of those issues make any sense and have nothing to do with the directed verdict rendered by the trial court. Appellant s issue of subject matter jurisdiction over the Appellees counterclaim against Amy Dill and Appellant makes no sense. Appellees did not have a counterclaim against Amy Dill. Appellant claims the evidence negates Appellees right to judgment, however it was the Appellant, as Plaintiff below who had the burden of proof at trial to prove each and every element of IIED which he failed to do. Appellant presents the issue that the evidence establishes Appellant s right to judgment as a matter of law and yet at trial the appellant failed to prove the elements of IIED and therefore the trial court grante d directed verdict for Appellees. Appellant claims in Issue 4 that the trial court lacked both personal and subject - matter jurisdiction over the Appellees counterclaim against Amy Dill, however 4.

9 there was no counterclaim against Amy Dill in this suit. Appellant further claims the Appellees criminal counterclaim constitutes a judicial admission that the Appellees conduct was extreme and outrageous as a matter of law, which makes no sense at all. There is no such thing in a civil suit as a criminal counterclaim. 5.

10 B. The Appellees, pursuant to rule 45, TRAP, further asserts that Gomez has filed a frivolous appeal, as there do not exist reasonable grounds to believe that the case could be reversed; and, he demonstrates a conscious indifference to set tled rules of law. Texas Department of Transportation v. Beckner, 74 S.W. 3 rd 98, 105 (Tex. App Waco 2002). Nevertheless Appellant Gomez persists in pursuing his frivolous action in forcing the parties and the courts to expend limited judicial and litigation resources. In this regard, the court in Chapman v. Hootman, 999 S.W.2d 118, 125 (Tex. App. Houston [14 th Dist.] 1999, stated: A party s decision to appeal should be based on professional judgment made after careful review of the record for preserve error in light of the applicable standards of review. Here, it is obvious that Chapman was motivated by other factors in pursuing his appeal. No amount of wishful thinking could have led Chapman to a reasonable belief that this Court would overrule the trial court s judgment based on the issues he raised on appeal, especially given the inadequate briefing and meritless arguments. There is no room at the Courthouse for frivolous litigation. When a party pursues an appeal that has no merit, it places an unnecessary burden on both the appellee and the courts. More importantly, it unfairly deprives those litigants to pursue legitimate appeals of valuable judicial resources. Further, the mere fact that Gomez may have a subjective belief that he may prevail does not alter the fact that his appeal is frivolous. In In the Matter of the Marriage of Fredye Mac Long (Thornburg), 946 S.W.2d 97, 99 (Tex. App Texarkana 1997), the Court stated: 6.

11 We have no doubt, considering the time and effort spent by Thornburg o n this appeal, that he subjectively expected to prevail in his appeal. As stated in our opinion, Thornburg had entered into a binding agreement not to appeal this matter, and his expectation to prevail must be decided on the basis of objective legal expect ations. To hold otherwise would be to reward Thornburg for failing to get legal advice and failing to evaluate his allegations properly in the light of binding legal precedents. We find this appeal to be without sufficient cause. Based on the briefs filed by Gomez and in light of the settled legal precedent, Gomez expectation to prevail, if he has one, is not made on the basis of objective legal expectations. The Appellees are requesting that this Court dismiss this frivolous appeal so as to prevent the further expenditure of judicial time and resources by the court; and, to prevent the further expenditure of time and litigation resources of the Appellees. The Appellees assert that the appropriate remedy is the dismissal of this frivolous appeal. In dealing with a persistent pro se litigant, the appellate court may take note of his previous appearances before the court and the nature of his legal arguments in deciding whether his appeal is frivolous. Birdo v. Holbrook, 775 S.W.2d 411, 412 (Tex. App. Fort Worth 1989, writ denied). The mere fact that an appeal is theoretically possible does not mean one should be filed, nor does it immunize frivolous appeals from the imposition of sanctions, whether pursuant to a motion for sanctions or sui sponte. Elmcreek Villas v. 7.

12 Beldon Roofing, 940 S.W.2d 150, 156 (Tex. App. San Antonio 1996, no writ). An appeal is frivolous if, from the Appellant s point of view, the Appellant had no reasonable ground to believe the judgment would be reversed, the appeal was brought in bad faith, or the appeal is objectively frivolous and injured the Appellee. Juku v. Middleton, 20 S.W. 3 rd 176, 178 (Tex. App. Dallas 2000, pet. denied). Pro se litigants are held to the same standards as license attorneys and must comply with the applicable law and rules of procedure. Brown v. Texas Employment Commission, 801 S.W. 2d 5,8 (Tex. App. Houston [14 th Dist] 1990, writ denied). 8.

13 CONCLUSION AND PRAYER The Appellees pray that the court dismisses the appeal of Appellant Gomez and that his appeal be dismissed and/or the judgment of the trial court be affirmed. Further Appellees pray that all costs be taxed against Appellant; and, for all other relief legal and equitable, to which they may be justly entitled. 9.

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15 Respectfully submitted, HERALD, FARISH & HUGHES By: _ Dan D. McClain Texas State Bar No E. Lamar Ave. Ste.250 Arlington, Texas (817) (facsimile) (817) (direct dial) 10.

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17 CERTIFICATE OF SERVICE On April 2, 2011, a true and correct copy of the foregoing was sent via certified and regular mail as follows: Daniel Gomez 5836 Ravendale Lane Dallas, Texas Dan D. McClain 11.