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Nance v. Nance7/31/1995
07/31/1995
On appeal from the 36th District Court of Bee County, Texas.
O P I N I O N
Thomas M. Nance and Nelda Nance, appellees, sued Sherry A. Nance, appellant, for personal injuries to Thomas M. Nance and for the wrongful death of Thomas N. Nance. The injuries and death were caused by appellant shooting them. Appellant, although confined in state prison, appeared pro se by filing a written answer to appellees' action and a counter-claim seeking affirmative relief. After a non-jury trial, judgment was entered against appellant for $901,500, and she took nothing by her counter-claim. Appellant timely perfected appeal.
Appellant appears pro se in this Court. She has not filed a statement of facts. The judgement reflects that Thomas M. and Nelda Nance appeared in court and, by attorney of record, announced ready for trial but that Sherry Nance did not appear "due to the results of the hearing of September 11, 1992." The judgement further reflects that no jury was demanded and the matter was submitted to the court. The Court, "after hearing the evidence and arguments of counsel," awarded damages to the appellees and found appellant's counterclaim without merit.
Appellant's first point, in its unedited entirety, recites:
TRIAL COURT ERRED IN FAILING TO JOIN PARTIES WITHOUT WHICH
JUST ADJUDICATION CANNOT BE OBTAINED. AND FAILED TO COMBINE
CAUSES WHICH WOULD HAVE BEEN INDICATED THEY HAD DONE BY THE
GIVING OF COUNTERCLAIM THE SAME NUMBER OF THE WRONGFUL DEATH
ACTION 20,112-A. WHICH WOULD HAVE INDICATED TO A PERSON
REASONABLE PERSON THIS HAD BEEN DONE.
We cannot determine the exact nature of appellant's complaint. The transcript bears the trial court's number 20,112-A. Appellees' and appellant's pleadings, as well as the judgement and all other documents contained in the transcript, bear this same cause number. There is no motion in the record for leave to join other parties and no order indicating the trial court refused to allow any requested joinder.
Appellant also asserts under this point of error that the trial court deprived her of constitutional rights by not notifying her of rulings on motions. The record before this Court, which consists of the transcript alone, fails to substantiate appellant's claim that the trial court failed to give appropriate notices. Point one is overruled.
In point two, appellant asserts:
TRIAL COURT FURTHER ERRED IN DISMISSING OF ACTION OF
COUNTERCLAIM IN OPPOSITION TO RULE 41(2).
Appellant purports to quote Federal Rule of Civil Procedure 41(2).
As this case was heard in state court, the federal rules are inapplicable. Therefore, appellant's argument is without merit.
If we treat the point as a challenge to the trial court's finding that appellant's counterclaim was without merit, we are nevertheless unable to reach the merits of the challenge because we lack a statement of facts. In the absence of a statement of facts, we assume the evidence, or lack of evidence, supports the judgment. Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987). Point of error two is overruled.
Unedited, point three reads:
IN ACCORD WITH THE ABOVE NAMED RULE TRIAL COURT ERRED IN NOT
RETAINING COUNTERCLAIM AS WAS NECESSARY FOR JUST ADJUDICATION
TO DO THIS VIOLATED APPELLANTS RIGHT OF ACCESS TO COURTS WHICH
ARE LIMITED BY VIRTUE OF HER INCARCERATION. THIS VIOLATED
SUPREME LAW OF THE LAND AS SET DOWN BY THE SUPREME COURT.
Page 1 2 3 4 5 6 Texas Personal Injury Attorneys
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