BRIGGS v. BANK OF AMERICA

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Court of Appeals of Texas, San Antonio.

Guamnetta M. BRIGGS, Appellant v. BANK OF AMERICA, N.A. and Federal National Mortgage Association, Appellees

No. 04-16-00087-CV

Decided: February 22, 2017

Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

MEMORANDUM OPINION

This is an appeal from a trial court's summary judgment in favor of appellees Bank of America, N.A. and Federal National Mortgage Association (collectively “Bank of America”). On appeal, appellant Guamnetta M. Briggs challenges the summary judgment. We affirm the trial court's summary judgment.

BACKGROUND

In 2010, Bank of America, N.A. foreclosed its lien on real property owned by Briggs due to a default in mortgage payments. Federal National Mortgage Association purchased the property at foreclosure. Thereafter, Briggs filed suit against Bank of America, asserting numerous causes of action.

Bank of America sought summary judgment on two of Briggs's claims, which the trial court granted. More than a year later, Bank of America filed a motion to strike, asserting Briggs had failed to respond to numerous discovery requests promulgated in 2010. The trial court granted the motion, finding Briggs failed to respond to requests for disclosure and interrogatories, and failed to demonstrate good cause for such failure.

Bank of America filed a second motion for summary judgment as to Briggs's remaining claims. Briggs sought, and was granted, two continuances for purposes of securing evidence to respond to the motion, which was a no evidence motion for summary judgment. Briggs ultimately filed a motion to reopen discovery and a response to the motion for summary judgment. After a hearing, at which Briggs's main argument was the impropriety of the prior order granting the motion to strike, the trial court denied the motion to reopen discovery and granted summary judgment in favor of Bank of America. Subsequently, eviction proceedings were concluded and possession of the property was awarded to Federal National Mortgage Association.

At all times prior to the filing of the notice of appeal, Briggs was represented by counsel. However, she filed a pro se notice of appeal and now appears before this court pro se.

ANALYSIS

As an initial matter, we must determine whether Briggs has presented anything for this court's review. On July 18, 2016, Briggs filed her brief in this court. After reviewing the brief, we determined it did not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. Specifically, we found the brief violated Rule 38.1 in that it did not include: (1) the identity of the parties and counsel; (2) a table of contents; (3) an index of authorities; (4) a statement of the case with record references; (5) a brief statement of the issues presented; (6) a statement of facts with record references; (7) a summary of the argument; (8) argument with appropriate citation to authorities and the appellate record; or (9) a prayer stating the nature of the relief sought. See id. R. 38.1(a)–(d), (f)–(j). Moreover, the brief did not contain a proper certificate of service. See id. R. 9.5(a), (d), (e).

Accordingly, on July 25, 2016, we issued an order, finding the brief flagrantly violated Rule 38.1, and ordering Briggs to file an amended brief. After this court granted Briggs an extension of time, she filed an amended brief. After reviewing the amended brief, we determined it too failed to comply with Rule 38.1, sending Briggs a letter notifying her that her amended brief was deficient. See id. R. 38.1. Briggs did not respond to our letter.

Texas appellate courts, including this court, have long held that an appellant's brief must contain clear and concise arguments with appropriate citations to authorities and the record. See, e.g., In re Estate of Aguilar, No. 04–13–00038–CV, 2014 WL 667516, at *8 (Tex. App.—San Antonio Feb. 19, 2014, pet. denied) (mem. op.); Keyes Helium Co. v. Regency Gas. Servs., L.P., 393 S.W.3d 858, 861–62 (Tex. App.—Dallas 2012, no pet.); Niera v. Frost Nat'l Bank, No. 04–09–00224–CV, 2010 WL 816191, at *3 (Tex. App.—San Antonio Mar. 10, 2010, pet. denied) (mem. op.); WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Citizens Nat'l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489 (Tex. App.—Fort Worth 2004, no pet.); see also TEX. R. APP. P. 38.1(i). A reviewing court has no duty to properly brief the issues for the appellant or to search the appellate record for facts supporting an appellant's argument. Torres v. Garcia, No. 04–11–00822–CV, 2012 WL 3808593, at *4 (Tex. App.—San Antonio Aug. 31, 2012, no pet.) (mem.op.); Rubsamen v. Wackman, 322 S.W.3d 745, 746 (Tex. App.—El Paso 2010, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). In other words, it is the appellant's burden “to discuss [her] assertions of error, and we have no duty—or even right—to perform an independent review of the record and applicable law to determine whether there was error.” Rubsamen, 322 S.W.3d at 746. In sum, as stated by the Texas Supreme Court in 2012, “[t]he Texas Rules of Appellate Procedure require adequate briefing.” ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). When an appellant fails to cite applicable authority, fails to provide relevant citations to the record, or fails to provide substantive analysis for an issue presented in the brief, nothing is presented for our review. See, e.g., Keyes Helium Co., 393 S.W.3d 861–62 (holding that failure to cite to relevant portions of record waives appellate review); Huey, 200 S.W.3d at 854 (holding that failure to cite applicable authority or provide substantive analysis waives issue on appeal); Niera, 2010 WL 816191, at *3 (holding that failure to provide appropriate citations or substantive analysis waived appellate issues); WorldPeace, 183 S.W.3d at 460 (holding that failure to offer argument, citations to record, or authority waives appellate review); Citizens Nat'l Bank, 142 S.W.3d at 489–90 (holding that appellant waived jury charge error by failing to include proper citation to record); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.1994) (holding appellate court may use its discretion to find issues waived due to inadequate briefing).

We recognize Briggs is representing herself on appeal, i.e., is appearing pro se. However, pro se litigants are generally held to the same standards as licensed attorneys and must comply with all applicable rules, including the rules governing appellate briefs. See e.g., Serrano v. Pellicano Park, L.L.C., 441 S.W.3d 517, 520 (Tex. App.—El Paso 2014, pet. dism'd w.o.j.); Kindle v. United Servs. Auto. Ass'n, 357 S.W.3d 377, 380 (Tex. App.—Texarkana 2011, pet. denied); Decker v. Dunbar, 200 S.W.3d 807, 809 (Tex. App.—Texarkana 2006, pet. denied); Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677–78 (Tex. App.—Dallas 2004, pet. denied). As the supreme court stated in Mansfield State Bank v. Cohn:

There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel.

573 S.W.2d 181, 184–85 (Tex. 1978); see Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (stating pro se litigants are not exempt from rules of procedure and that “[h]aving two sets of rules—a strict set for attorneys and a lenient set for pro se parties—might encourage litigants to discard their valuable right to the advice and assistance of counsel”).

Brigg's amended brief is deficient, failing to comply procedurally and substantively with the rules governing appellate briefing. See TEX. R. APP. P. 38.1. First, the brief is procedurally deficient in that it fails to include a proper:

(1) list of all parties and counsel — Briggs has not included the names or addresses of her trial counsel;

(2) index of authorities — Briggs has not properly cited to the three authorities in the index and has not included the page numbers where such authorities may be found in the brief;

(3) statement of the case — Briggs has not supported her statement with record references;

(4) statement of facts — Briggs has not included a single citation to the appellate record;

(5) summary of the argument — the summary is not a summary of a legal argument, rather it is a general complaint about the unfairness of the proceedings.

Id. R. 38.1(a) (stating brief must give complete list of all parties to judgment and names and addresses of all trial and appellate counsel); id. R. 38.1(c) (stating brief must include index of authorities arranged alphabetically and indicating pages of brief where authorities are cited); id. R. 38.1(d) (stating brief must concisely state nature of case, course of proceedings, and disposition; statement should be supported by record references); id. R. 38.1(g) (stating brief must concisely and without argument state facts pertinent to issues presented); id. R. 38.1(h) (stating brief must contain succinct, clear, and accurate statement of argument made in body of brief). Second, and more importantly, the brief fails to comply substantively with Rule 38.1, lacking any actual legal argument, failing to include a single citation to the appellate record, and lacking appropriate citations to legal authorities. Id. R. 38.1(i) (stating brief must contain clear and concise argument for contentions made with appropriate citations to authorities and to appellate record).

Briggs's argument is a generalized complaint about the unfairness of the foreclosure and the subsequent legal proceedings she initiated. None of her “complaints” allege error by the trial court, and the brief includes no actual legal argument. She blames her trial attorneys for the rendition of the order to strike and the summary judgment, and notes her continuing attempts to retain possession of her home. Although we can surmise Briggs is complaining about the trial court's order to strike her evidence and the resulting summary judgment, it is not this court's duty to conduct an review of the record and applicable law or create legal arguments therefrom to determine whether there was error. See Rubsamen, 322 S.W.3d at 746. Nor are we required to conduct a search of the record — in this case a clerk's record containing over three hundred pages — for facts supporting Brigg's general complaints. See Torres, 2012 WL 3808593, at *4; Rubsamen, 322 S.W.3d at 746.

Finally, her citations to authority are scant and either unrelated to her “complaints” or too general. Briggs cites to a single case, failing to provide a proper citation, merely referring to it as “Bexar County, et al vs David M. Dornak, et al.” We found a single case involving these parties, and the opinion has nothing to do with an order to strike due to discovery violations or a summary judgment motion. See Dornak v. Bexar County, No. 04-11-00761-CV, 2012 WL 2022669 (Tex. App.—San Antonio June 6, 2012, no pet.) (mem. op.). Rather, in our memorandum opinion, we dismissed Dornak's appeal for want of prosecution because he failed to timely file his appellant's brief. Id. at *1. Other than this citation, Briggs cites to the rule governing no evidence motions for summary judgment, Rule 166(a)(i), and includes a general citation to the Texas Rules of Civil Procedure. These citations are inappropriate or insufficient.

CONCLUSION

Based on the foregoing, we hold Briggs's brief is procedurally and substantively inadequate. In addition to the procedural briefing inadequacies, the brief includes neither citations to applicable legal authority, citations to the appellate record, nor any substantive legal analysis. Accordingly, we hold Briggs has presented nothing for our review. See, e.g., Keyes Helium Co., 393 S.W.3d 861–62; Huey, 200 S.W.3d at 854; Niera, 2010 WL 816191, at *3; WorldPeace, 183 S.W.3d at 460; Citizens Nat'l Bank, 142 S.W.3d at 489–90; see also Fredonia State Bank, 881 S.W.2d at 284. We therefore we affirm the trial court's summary judgment.

Marialyn Barnard, Justice