Guerrero v. Boyd (Tex.App.- Houston [1st Dist.] Dec. 11, 2008)(Nuchia)(pro se appeal deficient
briefing, parties to the appeal, nonsuited party not appellees, ineffective assistance of counsel)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00465-CV Maria Elena Guerrero v. Mark A. Boyd and Control Solutions, Inc.
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. John Thomas Wooldridge
Appellant Maria Elena Guerrero sued appellees Mark A. Boyd and Control Solutions, Inc. for alleged
personal injuries she suffered due to a fire and explosion at property belonging to Boyd that was
occupied by Control Solutions. Boyd and Control Solutions joined four third-party defendants: (1)
Benko Products, Inc.; (2) Choctaw Sales, Inc.; (3) Gharda Chemicals, Ltd. a/k/a Gharda Chemicals
Limited; and (4) Gharda USA, Inc.
Boyd and Control Solutions filed a no-evidence motion for summary judgment, which the district court
granted on February 2, 2007. Boyd and Control Solutions filed a motion to nonsuit the four third-party
defendants, which the district court granted on February 2, 2007, resulting in a final judgment that
Guerrero take nothing from Boyd and Control Solutions. Guerrero later asked her lawyer to withdraw
as counsel, and she prosecuted this appeal pro se.
In her appellant's brief, Guerrero raises no specific issue or point of error, but instead complains as
part of a general narrative that her lawyer was ineffective in representing her. Guerrero goes so far as
to suggest that her lawyer was paid by the defendants to not prosecute her case and that the district
judge "wanted" her to lose. She also claims there were fact issues in the case such that the
no-evidence summary judgment was improper and that the summary judgment violated her state and
federal constitutional rights to due process and due course of law.
The appellant's brief cites to two cases, both of which are lawyer disciplinary proceedings. The brief
contains neither any substantive discussion of what summary-judgment evidence existed that raised
sufficient fact issues to defeat the defendants' no-evidence motion for summary judgment, nor any
references to the clerk's record. The appellant's brief concludes by asking this Court to render a final
judgment in Guerrero's favor.
In substance, Guerrero is asking this Court to reverse the district court's judgment and remand the
case for a new trial based on ineffective assistance of counsel. The Sixth Amendment right to effective
assistance of counsel, however, does not extend to civil cases such as this personal-injury lawsuit.
See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343-44 (Tex. App.--Houston [14th
Dist.] 2003, no pet.). Furthermore, Guerrero's trial lawyer is not a party to this appeal. (1) We treat
Guerrero's comments that the no-evidence summary judgment was improper both on factual and
constitutional ground as her "evidence" of why her lawyer was ineffective, but we also hold that even if
we treat these complaints as separate issues, she has not adequately briefed them. See Harris
County Mun. Util. Dist. No. 48 v. Mitchell, 915 S.W.2d 859, 866 & n.15 (Tex. App.--Houston [1st Dist.]
1995, writ denied) (discussing failure to adequately brief).
We overrule Guerrero's contention that she received ineffective assistance of counsel and affirm the
district court's judgment.
Panel consists of Chief Justice Radack and Justices Nuchia and Higley.
1. In her appellant's brief, Guerrero
lists as appellees Boyd and Control Solutions, as well as the four third-party defendants. Texas Rule of
Appellate Procedure 3.1(c) defines an appellee as "a party adverse to an appellant." Unlike an appellant, who
must file a notice of appeal and identify himself or herself, an appellee need not be definitively identified until
the appellant's brief is filed. See Gray v. Allen, 41 S.W.3d 330, 331 n.2 (Tex. App.--Fort Worth 2001, no pet.).
An appellee, however, must be a party to the trial court's final judgment and must be someone against whom
the appellant raises issues or points of error in the appellant's brief. See id. Because the third party defendants
were nonsuited, they are not parties to the trial court's final judgment and cannot be appellees. Boyd and
Control Solutions are appellees, notwithstanding the fact that Guerrero does not specifically discuss them in
her appellant's brief (or bring a conventional issue or point of error), because the substantive relief that
Guerrero seeks--a new trial--is adverse to their interest in preserving the judgment that she take nothing.