COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00022-CV
EUGENE FLORES APPELLANT
V.
JAMES WOOD FINANCE LLC APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
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MEMORANDUM OPINION 1
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In six issues, Appellant Eugene Flores challenges the trial court’s judgment
ordering that he take nothing on his claims against Appellee James Wood
Finance, LLC (Finance). Because we hold that Flores waived each of his issues
because of inadequate briefing, we affirm the trial court’s judgment.
In 2009, Flores entered into a motor vehicle retail installment sales
contract with Finance for the purchase of a 2002 Chevy Tahoe. The agreement
1
See Tex. R. App. P. 47.4.
called for Flores to make monthly payments of $390.00. Finance repossessed
the Tahoe for nonpayment.
Flores sued Finance in the justice of the peace court in Denton County for
breach of contract, unjust enrichment, and trespass to real property, and seeking
damages and rescission of the sales contract. A jury found that Flores should
take nothing on his claims, and the judge signed a judgment to that effect.
Flores appealed to the county court, where he reasserted the same claims
and added a Deceptive Trade Practice Act 2 claim and a claim for fraud by non-
disclosure. Finance filed an answer asserting various affirmative defenses,
including that Flores’s trespass claim failed because by contract he consented to
Finance’s entry onto his property and that his DTPA and fraud claims failed
because, among other grounds, he did not plead them in the justice court.
After a hearing, the trial court signed a judgment finding that Flores had not
established his claims by a preponderance of evidence and ordering that Flores
take nothing on his claims. Flores now appeals.
Flores’s first issue asks whether the trial court abused its discretion “when
it failed to acknowledge the Tort Committed when [Finance] employees entered
[Flores’s property and] removed the chain and locks off the fence and took it with
them (steal).” Flores’s brief asserts that Finance employees committed a tort by
removing a lock and chain on a gate in order to take possession of the Tahoe.
2
Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (West 2011 & Supp. 2012).
2
Finance asserted in the trial court that Flores had consented to its entry onto
Flores’s property because the sales contract provided that it could repossess the
vehicle upon default. The sales contract does contain such a provision. Flores
does not provide any argument in his brief explaining what tort was committed or
why the trial court abused its discretion or addressing the contract provision
relied on by Finance. He points to no authority that he contends supports any
argument related to this issue.
An appellate brief must contain a clear and concise argument for the
contentions made in the brief, with appropriate citations to authorities and to the
record. 3 An appellant’s failure to cite legal authority or provide substantive
analysis of a legal issue presented results in waiver of the appellant’s complaint. 4
We liberally construe both the rules of appellate procedure and the briefs
of pro se parties. 5 But we may not speculate as to the substance of the specific
issues asserted by an appellant. 6 We may not make a party’s arguments for
3
Tex. R. App. P. 38.1.
4
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.
1994) (observing that error may be waived by inadequate briefing); Valadez v.
Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.); Huey v. Huey,
200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.).
5
Tex. R. App. P. 38.9; Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150
S.W.3d 423, 427 (Tex. 2004) (reiterating that courts of appeals should construe
appellate procedural rules reasonably yet liberally).
6
Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas
2004, pet. denied).
3
him. 7 And we may not perform an independent review of the record and the law
to determine if the trial court erred. 8 And while we realize that Flores appears
before this court without the assistance of counsel, pro se litigants must follow
the same procedural rules as licensed attorneys. 9 We hold that Flores has
waived this issue by inadequately briefing it.
Furthermore, to the extent that Flores makes any argument related to a
claim for theft of a chain and lock, he did not assert any such claim in the trial
court. He did assert that Finance representatives stole his chain and lock in the
justice court, but he did not base any cause of action on that act, and he did not
allege any theft of a chain or lock in his pleadings in the trial court. 10 We overrule
Flores’s first issue.
In Flores’s second issue, he asks whether the trial court abused its
discretion “when it acknowledged [Finance’s] [s]pecial [e]xception that was not on
the docket.” In Flores’s third issue, he asserts that the trial court abused its
discretion by denying Flores’s DTPA action because civil procedure rule 574a
7
Valdez, 238 S.W.3d at 845.
8
Id.; Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003,
pet. denied).
9
Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State
Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978) (stating that “[l]itigants who
represent themselves must comply with the applicable procedural rules, or else
they would be given an unfair advantage over litigants represented by counsel”).
10
See Tex. R. App. P. 33.1 (stating that before a complaint may be raised
on appeal, it must have been made to the trial court).
4
allows new matters to be introduced at a trial de novo. In his fifth issue, he
asserts that the trial court “abused its discretion in favor[ing] [Finance’s] motion
for [s]pecial [e]xception, when [it] [w]as not on the docket to be considered.”
Finance filed special exceptions asking the trial court to strike Flores’s
DTPA and fraud claims on the ground that they had not been raised in the justice
court. 11 These added claims were based on alleged misrepresentations by
Finance and a failure by Finance to disclose material facts and were not based
on Finance’s repossession of the Tahoe or its refusal to accept a partial payment
on the contract, the acts upon which Flores’s justice court claims were based.
The trial court considered the motion on the day of trial immediately prior to the
start of the trial. The court acknowledged that the motion had not been set for a
hearing but concluded that it could consider the motion because the grounds of
the motion were jurisdictional. The court sustained Finance’s objections and
struck the claims.
Flores makes no argument in his brief and cites no authority as to why the
trial court could not consider the special exceptions on the day of trial or why it
abused its discretion by striking the fraud and DTPA claims. To the extent that
he argues that his DTPA and fraud claims were not new grounds of recovery, he
11
See Tex. R. Civ. P. 574a (providing that in an appeal from a justice court
to a county or district court, a plaintiff may not plead a new ground of recovery).
5
does not explain the basis of this argument and cites to nothing in the record in
support. Accordingly, we overrule Flores’s fifth issue as inadequately briefed. 12
In Flores’s fourth issue, he asserts that the trial court helped Finance’s
counsel but announced it was not helping Flores and did not admit Flores’s
exhibits as hearsay. We are unclear as to what Flores’s legal argument is with
respect to the trial court’s providing assistance to Finance’s counsel and its
failure to provide him with assistance. He recites no facts to explain his
complaint, and we cannot determine what acts of the trial court he complains of.
The trial court did state that although “[i]t is not recommended,” Flores had the
right to represent himself, but that court would not be able to assist Flores in any
way. But Flores does not explain how he believes the trial court helped Finance
after refusing to help him, and he does not set out any legal theory about how the
trial court’s actions created reversible error. He cites no authority in support of
any legal argument. Accordingly, any complaint based on these assertions is
waived as inadequately briefed. 13
Similarly, with respect to Flores’s complaint that the trial court did not admit
one of Flores’s exhibits on hearsay grounds, he cites no law or facts in support of
an argument, and he does not explain what his argument is. Finance objected to
several of Flores’s exhibits on hearsay grounds, and Flores does not specify
12
See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
13
See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
6
which exhibits he believes should have been admitted or explain why the trial
court abused its discretion by sustaining Finance’s hearsay objections. Flores
does not explain whether the exhibits were not hearsay or whether they were
hearsay but nevertheless should have been admitted under some exception to
the hearsay rule. 14 We overrule this issue as inadequately briefed. 15
In Flores’s sixth issue, he asserts that the trial court “circumvented Flores’s
findings of fact and conclusions. Flores[’s] and Edward Shell[’s] declaration
[were] not admitted at trial. Court abused its discretion on the personal property
[trespass] issues.” With respect to his complaint about his findings of facts and
conclusions of law, we are unclear what his argument is. Prior to the trial, Flores
filed in the trial court a document entitled “PLAINTIFF’S FINDING OF FACTS &
CONCLUSION’S OF LAW.” The document sets out some law regarding his
asserted claims, and Flores attached various documents to the filing as exhibits.
Flores does not explain what legal effect he believes his filing of this document
had. Flores does not explain why he believes that the trial court was bound to
consider the document or give it any weight. He cites no law in support of any
14
See Tex. R. Evid. 801 (defining hearsay), 803 (providing exceptions to
the hearsay rule regardless of whether the declarant is unavailable as a witness),
804 (providing exceptions to the hearsay rule for instances when the declarant is
unavailable as a witness).
15
See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
7
such argument or from which we could determine what argument he is trying to
assert. We overrule this part of his sixth issue as inadequately briefed. 16
At trial, Flores attempted to introduce a declaration he had executed.
Finance objected that it was not a proper affidavit and that it was hearsay. The
trial court sustained Finance’s hearsay objection. But the court explained to
Flores that Flores could testify to the same matters that he had included in the
declaration. Flores responded, “That’s fine. I will testify to it.”
To the extent that Flores complains that the trial court should have
admitted the declaration, he does not explain why. He cites no law in support of
his argument. He does not explain why the declaration was not hearsay or fell
within an exception to the hearsay rule. Accordingly, this part of his issue is
inadequately briefed. 17 And Flores does not explain why, when he was given the
opportunity to testify about the matters included in the declaration, he was
harmed by the trial court’s exclusion of it. 18 We overrule this part of Flores’s sixth
issue.
Flores also appears to complain about the trial court’s failure to admit the
declaration of Edward Shell. We assume Flores refers to a document attached
as an exhibit to his “findings of fact and conclusions of law” that he filed with the
16
See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
17
See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
18
See Tex. R. App. P. 44.1.
8
trial court prior to trial. Flores does not explain why the trial court abused its
discretion by not admitting it. 19 And more importantly, Flores did not attempt to
introduce this declaration at the trial. Accordingly, the trial court did not abuse its
discretion by not admitting it. 20 We overrule this part of Flores’s sixth issue.
Lastly under this issue, Flores complains about the trial court’s handling of
“the personal property [trespass] issues.” Flores asserts in a supplement to his
brief that he had accidentally omitted a point regarding the issue of “[p]ersonal
[p]roperty [trespass].” We assume that he means that he omitted any argument
related to this part of his sixth issue. In the supplemental brief, Flores reasserts
his complaint that Finance employees removed the lock and chain from his gate
and in the process committed theft. He also reasserts that prior to repossession
of the Tahoe, a Finance employee refused to accept a partial payment. But
Flores does not explain the basis of his personal property trespass claim or cite
any law in support of such a claim. To the extent that he alleges a theft of the
lock and chain, we have already addressed that argument. We overrule this final
part of Flores’s sixth issue as inadequately briefed. 21
Finally, we note that Flores’s brief does contain citations to authority in that
Flores set out the elements for breach of contract, fraud by nondisclosure, and
19
See Tex. R. App. P. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
20
See Tex. R. App. P. 33.1
21
See Tex. R. App. 38.1; Fredonia State Bank, 881 S.W.2d at 284.
9
unjust enrichment, and he cites to statutes and cases that list those elements.
But the authority he sets out does not obviously relate to any of his issues on
appeal, and he does not explain how the cited authority supports any of his
arguments. Accordingly, the inclusion of this authority does not prevent his
issues from being overruled for inadequate briefing. 22
Having overruled each of Flores’s issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: June 20, 2013
22
See Tex. R. App. P. 38.1 (requiring the appellant’s brief to include
appropriate citations to authorities).
10