Opinion issued January 16, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00354-CV
———————————
ALFRED F. BERNAT, Appellant
V.
TOMAS SOTELO AND BENANCIA SOTELO, Appellees
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 1016865
MEMORANDUM OPINION
Plaintiff-appellee Alfred Bernat appeals the trial court’s summary judgment.
We affirm.
BACKGROUND
Bernat sued defendants-appellees Tomas Sotelo and Benancia Sotelo in the
Harris County Civil Court at Law, seeking possession of certain real property on
Larkin Street and an award of damages. Specifically, Bernat’s petition alleges that
he has expended money for repairs and maintenance to parts of the Larkin
property, and that the Sotelos have refused to pay rent or move. He also states that
he does not remember signing an agreement to sell the property to the Sotelos.
Bernat’s petition acknowledges that he brought three unsuccessful forcible
entry and detainer proceedings in justice court before filing the underlying suit, but
claims that they were wrongfully defeated by the Sotelos’ attorney’s “fraudulent
statements.” Bernat’s petition identifies the following claims:
“Count I – Unclean Hands”: Bernat alleges that the Sotelos and their
attorney committed fraud to defeat his eviction suits in justice courts.
Under the doctrine of “unclean hands,” Bernat asserts that the Sotelos
should be denied relief and he should be awarded equitable damages.
“Count II – Violation of Constitutionally Protected Rights”: Bernat
alleges that he is entitled to relief under the Fourteenth Amendment’s
guarantee that no State will deprive a person of life or liberty without
due process of law.
“Count III – Bond – Justice Court Set Bond” Bernat alleges that the
$2,500 appeal bond set by the justice court was a sanction that was
“excessive and unreasonable.”
“Sanction – Judgment Abused Court Discretion”: Bernat contends that
the justice court erred in not taking into consideration Texas Rule of
Civil Procedure 215 in setting the amount of sanctions awarded
against him.
2
“Conclusion – Fraud Upon the Court”: Bernat complains that his
rights and privileges were adversely impacted by the Sotelos’ actions
and the actions of their lawyer and other parties. He asserts that the
justice court committed error by ordering him to pay $1,800 of the
Sotelos’ attorneys’ fees.
“Equitable Rescission”: Bernat argues that the deed to the Sotelos
should be rescinded based upon “unilateral mistake.”
His prayer for relief requested the court enter a final judgment awarding
(1) a minimum of $250,000 in actual damages, (2) punitive damages, (3) all
expenses and costs, including attorneys’ fees, (4) exemplary and future damages,
(5) profits, (6) prejudgment and post-judgment interest, (7) removal of the Sotelos
from the Larkin property, (8) $1,200 in monthly rent for the pendency of the
appeal, (9) additional costs and expenses if known or unknown, (10) return of the
bond, (11) void the judgment of fraud, and (12) void the sanctions’ judgment.
From a review of the entire record, it appears that the parties’ dispute started
over two lots that were omitted from the Warranty Deed transferring the Larkin
property from Bernat to the Sotelos. According to the Sotelos, they purchased the
Larkin property—including all four lots—from Bernat in 1991. The Larkin
property contains a house that straddles four different tracts—380 & 381 at the
front and 727 & 726 at the back—which taken together make up a 50’ x 128’
parcel that has been completely fenced since purchase. The parties’ “Agreement to
Buy and Sell” listed the Larkin property’s address and describes the property as
containing a “lot measuring 50’ x. 128’.” The Warranty Deed, however, omitted
3
reference to lots 381 & 726, resulting in a property description of a lot that is only
25’ x 128.’ It appears that when the Sotelos tried to later remedy this error, Bernat
began making claims on the property.
A. The Parties’ Summary-Judgment Motions
The Sotelos filed a combined no-evidence and traditional summary-
judgment motion in the trial court. The no-evidence motion argued that there was
no evidence to support Bernat’s claims that (1) there is a lease agreement, (2) the
Sotelos breached a lease agreement, or (3) Bernat did not sell the entire Larkin
property to the Sotelos.
Their traditional summary-judgment motion sought judgment in their favor
and an award of attorneys’ fees. It proffered, as evidence, (1) Benancia Sotelo’s
affidavit; (2) an October 26, 1991 agreement for sale of the Larkin property signed
by Bernat and the Sotelos; (3) the Warranty Deed; (4) the Deed of Trust; (5) the
Release of Lien; (6) a certified copy of the September 14, 2011 judgment of the
Justice Court, Pct. 1, Place 1, Harris County, Texas stating that Bernat’s eviction
suit was brought in bad faith; (7) a certified copy of the May 15, 2012 judgment of
Justice Court, Pct. 1, Place 1, Harris County, Texas stating that Bernat’s second
eviction suit was brought in bad faith; (8) a certified copy of the judgment of the
164th district court ordering that Bernat take nothing on his claims to Lots 381 and
4
727 and awarding title to those lots to the Sotelos; and (9) an attorneys’ fees
affidavit.
Bernat filed a cross-motion for summary judgment and motion to strike the
Sotelos’ summary-judgment evidence. His motion complained of the sanctions in
the justice court, the alleged fraud on the court by the Sotelos’ lawyer, and
requested the sale to the Sotelos be set aside as void or, alternatively, rescinded and
the property placed into a constructive trust.
B. The Trial Court’s Judgment
In a Final Summary Judgment, the trial court rendered judgment for the
Sotelos, awarded to them attorneys’ fees, and ordered that Bernat take nothing.
THIS APPEAL
Bernat’s appellant’s brief identifies no issues for appeal and contains no
discussion or cites to the summary-judgment record. The only two legal arguments
related to the specifics of this case are his assertions that (1) Ms. Soltelo’s affidavit
in support of summary judgment is false and should not be considered, and (2) the
Sotelos’ attorney committed fraud on the court by relying upon Ms. Sotelo’s
affidavit in court. He cites no evidentiary support for his allegations.
The Sotelos respond that the trial court’s summary judgment was proper
because they conclusively established their entitlement to judgment, and because
Bernat failed to produce any evidence raising a fact issue in contravention of their
5
no-evidence motion. The Sotelos also contend that Bernat has waived any issue on
appeal by designating an incomplete record (i.e., omitting the summary-judgment
briefing, evidence, and resulting order), failing to set forth any issues or points as
assigned error in his brief, failing to provide any citation to the trial-court record,
and failing to discuss any legal principles in factual context.
We agree that Bernat’s brief is devoid of any substantive argument on the
actual issues presented in the trial court, the facts of the underlying case, or the
summary judgment granted. Parts of the brief are incomprehensible, and it lacks
appropriate record citations. We thus conclude that Bernat has waived any issue for
our review. See TEX. R. APP. P. 38.1(f) (“The brief must state concisely all issues
or points to be presented for review.”), 38.1(g) (“The brief must state concisely and
without argument the facts pertinent to the issues or points presented . . . [and] be
supported by record references.”), 38.1(i) (“The brief must contain clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.”).
CONCLUSION
We affirm the trial court’s judgment.
6
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
7