Case: 09-11196 Document: 00511363702 Page: 1 Date Filed: 01/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2011
No. 09-11196 Lyle W. Cayce
Summary Calendar Clerk
IRIS WYNN; LEROY P. MITCHELL,
Plaintiffs–Appellants,
YVONNE TAYLOR,
Appellant,
v.
THE DALLAS HOUSING AUTHORITY,
Defendant–Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-1997
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
In this breach of contract case, Leroy P. Mitchell appeals from the district
court’s grant of summary judgment and a jury verdict in favor of the Dallas
Housing Authority (DHA). As explained below, Iris Wynn and Yvonne Taylor
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-11196
are named as appellants, but are not properly parties to this appeal. This court
has previously granted the appellees’ motion to strike portions of documents
improperly included in the appellants’ record excerpts and motions to remove
appellants by several originally named defendant-appellants. We have also
denied the appellees’ motion to appoint counsel. We now affirm the district
court’s summary judgment for the DHA. We also dismiss Mitchell’s appeal of all
other issues.
I
Mitchell and other original plaintiffs in this case, including Wynn, were
landowners and managers for properties that participated in the DHA Section
8 Housing Program (program). Under the program, eligible families applied for
aid from the United States Department of Housing and Urban Development
(HUD), administered by the DHA, to pay a portion of their rent for existing
housing owned by private individuals. The DHA entered into contracts with the
landlords to pay the balance of rent for those families deemed eligible.
Mitchell and other plaintiffs originally alleged multiple causes of action
against the DHA, HUD, Carolyn Stovall, individually and as Director of
Landlord Services for DHA, Carlos Ontiverous, individually and as Special
Agent for HUD, and the City of Dallas. The plaintiffs subsequently filed a “First
Amended Complaint,” listing only Mitchell and Michael T. Booty as plaintiffs.
The district court granted the defendants’ motions to dismiss, allowing only the
breach of contract claim against the DHA to proceed.
The district court later granted summary judgment to the DHA on the
breach of contract claims regarding some of the properties at issue. The breach
of contract claims on the remaining properties were tried before a jury. The jury
found in favor of the DHA on the claims regarding all but one of Mitchell’s
properties. This appeal arises from the final judgment in the case issued by the
United States District Court for the Northern District of Texas. The court
2
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permitted the plaintiffs’ attorney to withdraw after the final judgment was
entered. This pro se appeal followed.
II
We agree with the DHA that Wynn and Taylor are improperly named as
appellants in this case because they do not have standing to appeal. Wynn was
named as a plaintiff in the original complaint, but was thereafter dropped as a
plaintiff in the First Amended Complaint filed by the remaining plaintiffs. The
First Amended Complaint superseded the original complaint, and neither
referred to, adopted, nor incorporated by reference the original complaint.1
Therefore, Wynn abandoned her claims before any action on them was taken by
the district court. Taylor was never a named party in the suit; she therefore has
no standing to assert claims in this appeal. Neither Wynn nor Taylor have
demonstrated that they have preserved any claims for appeal or that they are
entitled to appeal from the district court’s final judgment.2 We will therefore
address only those claims attributable to appellant Mitchell.
We must also address the DHA’s argument that Mitchell’s disregard for
both the Federal Rules of Appellate Procedure and this court’s rules compel
dismissal of the appeal. The DHA contends that Mitchell has failed to follow the
applicable rules of procedure by failing to (1) provide a transcript of trial
proceedings; (2) file a statement of the issues presented on appeal; and (3) cite,
in his brief, the authorities and parts of the record on which he relies. We will
address these contentions along with Mitchell’s substantive claims, as they are
intertwined.
1
See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (per curiam) (“An amended
complaint supersedes the original complaint and renders it of no legal effect unless the
amended complaint specifically refers to and adopts or incorporates by reference the earlier
pleading.”).
2
See 28 U.S.C. § 1291.
3
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III
Mitchell argues that the district court erred in granting summary
judgment to the DHA on his breach of contract claims. The district court
granted summary judgment to the DHA regarding all but ten of Mitchell’s
properties at issue in the case. The DHA argues the appeal should be dismissed
for failure cite to the portions of the record on which Mitchell relies. Though we
have considered waived arguments for which the appellant failed to cite to the
parts of the record and authorities on which he relied,3 we generally read the
briefs of pro se litigants liberally.4 We thus address the substance of the appeal
of the summary judgment to the extent possible.
We review the district court’s grant of summary judgment de novo.5
Summary judgment is only appropriate if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”6 The court must view all evidence and draw all inferences
from the evidence in the light most favorable to the party opposing the motion.7
After the moving party has made an initial showing, the nonmoving party must
come forward with competent summary judgment evidence of the existence of a
genuine fact issue.8 Mere assertions of a factual dispute unsupported by
probative evidence will not prevent summary judgment,9 and “in the absence of
3
E.g., Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (citing FED . R. APP . P.
28(a)(4)).
4
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam).
5
Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 859 (5th Cir. 2004).
6
FED . R. CIV . P. 56(a).
7
Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010).
8
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
9
Abbot v. Equity Grp., Inc., 2 F.3d 613, 619 (5th Cir. 1993).
4
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any proof,” we do not “assume that the nonmoving party could or would prove
the necessary facts.”10
We read Mitchell’s brief to appeal the summary judgment in favor of the
DHA on only the following properties: 627 Cove Hollow, 4926 Crozier,
2511 Sylvan, and 2513 Sylvan. Mitchell asserts a “due process” claim that the
district court improperly denied his request during the summary judgment stage
to “consider the fact that [he] had been and [was] still attempting to retrieve”
documents that had been subpoenaed in a previous case but allegedly not
returned. In light of Mitchell’s failure to reference any particular error by the
district court, provide record citations for the claim, preserve the claim for
appeal, or provide legal authority for the claim, Mitchell has waived the due
process claim.11
The district court’s written orders granting summary judgment and then
later, on Mitchell’s request, reviewing the order, point to specific evidence in the
summary judgment record in support of the summary judgment. Mitchell
specifies no summary judgment evidence in the record and identifies no proof to
support his vague assertions that the district court erred in granting summary
judgment to the DHA. We generously read Mitchell’s brief to point to what he
refers to as “Restricted Document #172 on PACER” as containing evidence
responding to the DHA’s showing of no genuine dispute of material fact. Upon
review of this document, which is included in the record but to which Mitchell
fails to provide citation, we conclude that Mitchell did not provide evidence of the
existence of a genuine dispute of material fact that required a jury trial.
10
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam)
(citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
11
See Yohey v. Collins, 985 F.2d 222, 224-25, 226 (5th Cir. 1993).
5
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IV
Mitchell also appears to argue that the evidence supporting the jury
verdict for the DHA on ten of the properties at issue was insufficient. To the
extent that this argument is presented, we dismiss the appeal of this issue for
two reasons. First, Mitchell failed to file a transcript of the trial proceedings.
Federal Rule of Appellate Procedure 10 requires an appellant who “intends to
urge on appeal that a finding or conclusion is unsupported by the evidence or is
contrary to the evidence” to “include in the record a transcript of all evidence
relevant to that finding or conclusion.”12 Though a dismissal for failure to
include a transcript is within our discretion,13 and we generally liberally read the
briefs of pro se litigants,14 we cannot review the sufficiency of the evidence
presented at trial without evidence in the record of what was presented at trial.15
Second, Mitchell failed to file a motion for judgment as a matter of law 16 during
the trial, thereby waiving his right to challenge the sufficiency of the evidence
on appeal.17 Because of the absence of a trial transcript, we cannot perform any
review—plain error or otherwise—of the sufficiency of the evidence in this case.18
12
FED . R. APP . P. 10(b)(2).
13
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1289 (5th Cir. 1995).
14
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
15
See Richardson v. Henry, 902 F.2d 414, 415-16 (5th Cir. 1990) (dismissing an appeal
of the sufficiency of the evidence supporting the district court’s judgment because the
appellant “failed to include in the record a transcript of the testimony which constitutes most
of the evidence” in the case).
16
See FED . R. CIV . P. 50(a).
17
See Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 288 (5th Cir. 2007)
(“Generally, a party who fails to present a Rule 50(a) motion on an issue at the close of
evidence waives . . . its right to challenge the sufficiency of the evidence on appeal.”).
18
See Lincoln v. Case, 340 F.3d 283, 290 (5th Cir. 2003) (reviewing the sufficiency of
the evidence argument for plain error in a case in which the appellant failed to file a Rule
50(a) motion at trial).
6
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V
In his list of “Questions Presented,” Mitchell also appears to appeal
evidentiary rulings made by the district court. Mitchell has waived any
challenge he may have had regarding these rulings. There is no evidence in the
record of written objections Mitchell made to DHA’s evidence. There is also no
evidence in the record of exhibits Mitchell submitted to the jury that would
support his arguments concerning specific properties on which he claims the
court erred in its evidentiary rulings. In addition, Mitchell’s “failure to provide
this court with a transcript precludes us from determining whether he made
appropriate objections to the district court’s evidentiary rulings.”19 We do not
consider arguments that were not presented to the district court.20
VI
Mitchell’s statement that his trial counsel was “inaccurate” at trial seems
to present a claim of ineffective assistance of counsel. As there is no Sixth
Amendment right to counsel in a civil trial, the ineffective assistance claim is not
an appealable issue.21
* * *
We AFFIRM the district court’s partial summary judgment for the DHA,
and we DISMISS the appeal to the extent that it raises other issues.
19
Richardson, 902 F.2d at 416.
20
Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 257 n.15 (5th Cir. 2008) (citing
Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994)); see Richardson, 902 F.2d at
416.
21
Fed. Trade Comm’n v. Assail, Inc., 410 F.3d 256, 267 (5th Cir. 2005) (citing Sanchez
v. U.S. Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986) (per curiam)).
7