Jeffrey Mann and Gary Mann v. Hon. E. Lee Gabriel--Appeal from 211th District Court of Denton County (Per Curiam)

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State: Texas

Court: Texas Northern District Court

Docket No: 11-10-00265-CV

Case Date: 07/12/2012

Plaintiff: Jeffrey Mann and Gary Mann

Defendant: Hon. E. Lee Gabriel--Appeal from 211th District Court of Denton County (Per Curiam)

Preview:Opinion filed July 12, 2012

In The

Eleventh Court of Appeals
__________

No. 11-10-00265-CV __________ JEFFREY MANN AND GARY MANN, Appellants V. HON. E. LEE GABRIEL, Appellee

On Appeal from the 211th District Court Denton County, Texas Trial Court Cause No. 2009-30383-211

MEMORANDUM OPINION This is an appeal from a judgment dismissing pro se litigants' claims against a district judge on the basis of judicial immunity. We affirm. Background Facts The underlying action was instituted by Jeffrey Mann and Gary Mann. They filed suit on their own behalf and purportedly on behalf of the following alleged entities and persons: The Health Center, Chiro-Plus Chiropractic, Noble Clinic and Rehabilitation, The Health Center and Rehabilitation Clinic, J.C. Mann Enterprises, Mark Dodson, Carol Criner, Betty Scott, and "1500 Known but Unnamed Patients." We will collectively refer to all listed plaintiffs as appellants. Appellants sued several defendants, including Denton County, the Denton County Sheriff's Department, and the Hon. E. Lee Gabriel, former judge of the 367th District Court in Denton

County.1 Appellants essentially contend that the defendants agreed to return seized property to them but that the defendants subsequently failed to do so. Judge Gabriel filed a motion to dismiss the claims against her on the basis of judicial immunity. The trial court initially considered the motion to dismiss on November 24, 2009. The trial court granted the motion to dismiss and severed the cause of action against Judge Gabriel. The severed cause of action against Judge Gabriel was assigned trial court cause no. 200930383-211. Appellants subsequently asserted that they did not have notice of the hearing conducted on November 24, 2009. Based upon appellants' contention, the trial court set aside the judgment entered on November 24, 2009, and reconsidered the motion to dismiss on December 29, 2009. The trial court subsequently granted Judge Gabriel's motion to dismiss on December 29, 2009. This appeal arises from the final judgment entered in trial court cause no. 2009-30383-211. Accordingly, Judge Gabriel is the only appellee in this appeal. Analysis In their initial brief, appellants asserted three issues. They subsequently asserted an additional three issues in a "supplemental" brief that they filed after filing a reply brief to Judge Gabriel's brief. In the interest of judicial economy, we will consider all six issues presented by appellants although the latter three were not included in the original brief. See Howell v. Tex. Workers' Comp. Comm'n, 143 S.W.3d 416, 439 (Tex. App.--Austin 2004, pet. denied) (the rules of appellate procedure do not allow an appellant to include in a reply brief a new issue not raised by appellant's original brief).2 Appellants assert numerous procedural issues in their six issues. Their procedural

complaints include the alleged violation of local rules and the Texas Rules of Civil Procedure concerning such matters as the scheduling of hearings, conferring with opposing counsel, and presenting proposed orders to opposing counsel and the trial court prior to hearing. Appellants additionally complain that the trial court was biased and prejudiced against them because it

This appeal was originally filed in the Second Court of Appeals at Fort Worth. Judge Gabriel currently serves as a justice on the Second Court of Appeals. As a result of her service on the Second Court of Appeals, the court entered an order of disqualification and recusal wherein the court acknowledged that Judge Gabriel was disqualified from participating in this appeal. Additionally, the remaining six justices recused themselves from participating in the appeal. In light of the disqualification and recusal, the Texas Supreme Court transferred this appeal to the Eleventh Court of Appeals at Eastland in Miscellaneous Docket Order No. 10-9149. We note that appellants did not seek permission from the court to file a supplemental brief in this cause. TEX. R. APP. P. 38.7 provides that "[a] brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe." The preferred practice would have been for appellants to seek the court's permission before filing a supplemental brief containing additional issues.
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granted Judge Gabriel's motion to dismiss without considering the numerous motions and requests that they presented to the trial court. As set forth below, we conclude that appellants' procedural complaints are moot in light of the trial court's determination that it lacked subjectmatter jurisdiction based upon Judge Gabriel's judicial immunity. Subject-matter jurisdiction is essential for a court to have the authority to resolve a case. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638

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