Cesar De Los Reyes v. Norma Leticia Maris J&K Truck Sales, LLC And Jose Fernandez

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00022-CV
___________________________

CESAR DE LOS REYES, Appellant

V.

NORMA LETICIA MARIS; J&K TRUCK SALES, LLC; AND JOSE
FERNANDEZ, Appellees

On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-306954-19

Before Sudderth, C.J.; Kerr and Bassel, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

Appellant Cesar De Los Reyes raises six issues challenging a summary-

judgment order that dismissed with prejudice his claims against Appellees J&K Truck

Sales, LLC and Jose Fernandez (collectively Appellees). The remaining defendant in

the trial court, Norma Leticia Maris, will be mentioned by name, but only briefly,

because Appellant’s claims against her were disposed of in a no-answer default

judgment and because he does not challenge any aspect of the relief granted against

her.1

Appellant is disgruntled with the treatment that he claims he received in the

trial court.2 Appellant’s first three issues assert that the trial court’s rulings in a bench

trial demonstrated bias, that the trial court also demonstrated bias by sua sponte

declaring a mistrial after it had heard evidence in the bench trial, and that the trial

court should have recused itself after granting the mistrial. These issues fail. We will

detail below how Appellant has failed to preserve error on his bias and recusal claims,

has failed to establish that the trial court acted with bias, and has failed to bring

Because Appellant does not challenge the relief granted against Maris in the
1

default judgment, we affirm the trial court’s default judgment disposing of Appellant’s
claims against Maris.

For purposes of consistency, we use the term “trial court” throughout even
2

when referring to Appellant’s issues that are directed at the trial judge’s conduct.

2
forward an adequate record to establish that the trial court made the statements that

he claims revealed a bias.

In his fourth issue, Appellant complains that the trial court abused its

discretion by withdrawing an interlocutory order granting his motion for summary

judgment and entering an order denying that motion. Appellant ignores the trial

court’s discretion to withdraw an interlocutory order so long as it retains plenary

jurisdiction and does not use the withdrawal of the order as a means of cutting off a

party’s ability to present its claims. Application of these principles shows that the trial

court acted within its discretion to withdraw and alter its rulings on Appellant’s

summary-judgment motion.

Finally, in his fifth and sixth issues, Appellant argues that the trial court erred

when it granted Appellees’ motion for summary judgment and denied his. Appellant

has waived these claims of error because of disregard for the rules governing the

presentation of appellate issues to this court.

Accordingly, we affirm the trial court’s summary judgment.

II. Factual and Procedural Background

The factual background of this matter is not complex, and that background has

little impact on the resolution of Appellant’s issues. We will give only enough

background to place those issues in context.

3
 Appellant purchased a Freightliner tractor from Maris. At the time of the

purchase, Maris gave Appellant a copy of the tractor’s title. Appellant’s subsequent

efforts to obtain the original title from Maris failed.

Appellant learned that J&K had sold the tractor to Maris. Appellant contacted

J&K and spoke to the owner—Fernandez—who allegedly refused to surrender the

original title to the tractor.

Appellant sued both Maris and Appellees. In his live petition, Appellant

alleged that Appellees’ claim of a lien on the tractor was fraudulent and that Appellees

were withholding the tractor’s title as leverage to collect monies owed by Maris for a

transaction unrelated to the tractor sale. The petition alleged causes of action against

Maris for breach of contract, promissory estoppel, violations of the Texas Deceptive

Trade Practices Act, and fraud. Against the Appellees, the petition alleged causes of

action for tortious interference with contract, use of a fraudulent lien, and conspiracy.

The procedural background of this matter is also not complex, but it is unusual.

As noted, Maris drops from our discussion because she never answered Appellant’s

suit.

Appellant filed a motion for summary judgment against Appellees; he

subsequently amended the motion and then withdrew the amendment and opted to

proceed on his original motion. The trial court granted a limited aspect of the

summary-judgment motion and ordered Appellees to deliver the tractor’s title to

Appellant. Appellees complied with this order.

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 A few months after signing this order, the trial court conducted a bench trial.

After hearing the parties’ evidence, the trial court sua sponte declared a mistrial and

stated that it was going to reset the case to a later date.

The day after declaring the mistrial, the trial court withdrew the order that it

had previously signed granting a portion of Appellant’s summary-judgment motion.

On the same date, the trial court signed an order denying that motion. Appellees then

filed a traditional and no-evidence motion for summary judgment. Appellant

responded to the motion. The trial court granted Appellees’ motion for summary

judgment. This judgment became final when the trial court signed a default judgment

against Maris. Appellant then filed a notice of appeal.

III. Analyses and Holdings

A. We overrule Appellant’s first issue claiming that the record
demonstrates bias on the part of the trial court.

Appellant’s first argument goes on for seventeen pages, examining almost every

ruling on objections made by the trial court during the bench trial in which a mistrial

was granted. We are unsure of the nature of Appellant’s complaint. Appellant

prefaces his argument by stating,

Appellant appeals numerous incorrect evidentiary rulings by the trial
court that deprived Appellant of the right to effectively present his case[]
that, when viewed collectively, show that Appellant was deprived of his
right to a fair trial before an impartial tribunal.

If Appellant’s argument is that the trial court erred in its specific rulings, we do

not understand how the effect of those rulings harmed him. The trial court did not

5
enter a judgment after the bench trial. Further, Appellees filed the bench-trial record

in support of their motion for summary judgment, and Appellant filed the same in

support of his response to that motion. Thus, if we reached the issue, our review of

the summary judgment would be whether the bench-trial record established the

grounds for Appellees’ motion for summary judgment as a matter of law or if it

contained evidence raising a fact question. Our review would not involve whether the

trial court made proper rulings during the bench trial or gave Appellant an adequate

opportunity to present his case. Thus, the only harm that Appellant can claim from

the rulings is that they allegedly reveal a harmful bias on the part of the trial court. A

claim of bias predicated on the bench-trial rulings fails. As discussed below,

Appellant has not preserved error; trial rulings are not a proper basis to establish bias;

and even if the trial court’s rulings suggest frustration with Appellant or his counsel,

expressions of frustration and annoyance do not in and of themselves establish bias.

The types of rulings that Appellant predicates his argument on include the

following: (1) objections to leading, nonresponsive, and speculative questions and

answers; (2) hearsay objections; and (3) the trial court’s refusal to permit Appellant’s

counsel to question opposing counsel about settlement negotiations. For the sake of

efficiency, we do not include the lengthy quotations from the record set forth in

Appellant’s brief. Also, resolving Appellant’s issue through the prism of bias makes it

unnecessary to catalog the rulings as they are typical rulings that trial courts make

during any trial or hearing.

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 First, we address Appellant’s failure to preserve error because he did not object

to the trial court’s actions that he contends demonstrate bias. A party usually must

object to a trial court’s allegedly improper conduct or comments. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001). But as we noted recently, “[i]n the context of

a bench trial, if the error is incurable, courts excuse a party’s failure to preserve error.”

Song v. Kang, No. 02-18-00375-CV, 2020 WL 1808487, at *8 (Tex. App.—Fort Worth

Apr. 9, 2020, pet. denied) (mem. op.). In this stance, the exception to the need to

object “essentially requires a harm analysis—whether the error probably caused the

rendition of an improper judgment—to determine whether the error was incurable

and, thus, not subject to waiver.” Id. As we stated in another case, “if a judge’s bias

and prejudice as shown on the face of the record were harmful, thereby depriving a

litigant of his important constitutional right to a fair trial with an impartial fact[]finder

and resulting in an improper judgment, then a party’s failure to object does not waive

the complaint.” In re L.S., No. 02-17-00132-CV, 2017 WL 4172584, at *16 (Tex.

App.—Fort Worth Sept. 21, 2017, no pet.) (mem. op.). As we explain next, the trial

court’s rulings in the bench trial hardly demonstrated bias or prejudice that was

apparent on the face of the record and obviated the need for an objection. Thus,

Appellant has failed to preserve error.

We begin our review of the trial court’s actions by noting that it is a given that

all parties have the right to a fair trial before a fair and impartial judge. Ellason v.

Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no pet.). However, “[i]n the

7
absence of clear proof to the contrary, we presume a trial judge is impartial and

unbiased.” Place v. McCoy, No. 01-20-00186-CV, 2021 WL 3500989, at *5 (Tex.

App.—Houston [1st Dist.] Aug 10, 2021, no pet.) (mem. op.). “To reverse a

judgment on the ground of improper conduct or comments of the judge, we must

find (1) that judicial impropriety was in fact committed and (2) probable prejudice to

the complaining party.” Id.

Bias on the part of the trial court can seldom be established solely on the

court’s judicial rulings. Song, 2020 WL 1808487, at *7. As we noted in Song,

[w]hen presented with allegations of judicial bias, the United States
Supreme Court has written that “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion” and that the
opinions a judge forms during a trial do not call into question a judge’s
bias or partiality “unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.”

Id. (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)); see

also Tex. R. Civ. P. 18a(a)(3) (requiring a motion to recuse “must not be based solely

on the judge’s rulings in the case”).

Further, even overt statements of dissatisfaction with a party, their counsel, or

their claims seldom establish a bias of such proportion that a party was deprived of a

fair trial. Specifically,

“judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” [Francis, 46
S.W.3d at 240] (citing Liteky[, 510 U.S. at 555, 114 S. Ct. at 1157]).
Expressions of “impatience, dissatisfaction, annoyance, and even anger”
do not establish bias or partiality. Id.

8
Haynes v. Union Pac. R.R. Co., 598 S.W.3d 335, 356 (Tex. App.—Houston [1st Dist.]

2020, pet. dism’d); see also Hamilton v. Hamilton, No. 02-19-00211-CV, 2020 WL

6498528, at *11 (Tex. App.—Fort Worth Nov. 5, 2020, no pet.) (mem. op.) (“[A]

judge’s ordinary efforts at courtroom administration are immune from judicial-bias

allegations.”).3

Here, the bench-trial record contains no statements that indicate a bias by the

trial court; indeed, the massive quotations from the record do not contain expressions

of impatience or annoyance at all. Instead, Appellant’s claim of bias stands on a litany

of the types of rulings that trial judges make from minute to minute during trial.

These rulings hardly demonstrate an incurable bias that obviated the need to object to

what Appellant considered biased treatment by the trial court. Appellant should have

objected if he truly believed he had a meritorious challenge to the trial court’s

impartiality. Thus, as an initial matter, we conclude that Appellant has failed to

preserve error. Beyond that failing, his contentions merely demonstrate disagreement

with the trial court’s rulings, but the rulings themselves do not reveal a deep-seated

favoritism or antagonism that suggests fair judgment on the part of the trial court was

impossible. Thus, we reject Appellant’s contention that the rulings establish that the

3
If Appellant is arguing that he suffered cumulative harm from the number of
errors that the trial court committed, that argument does his bias claim no good. See
Haynes, 598 S.W.3d at 357 (“[W]e found no errors regarding [appellant’s] preserved
complaints of bias, and, therefore, we need not undertake a cumulative-harm
analysis.”).

9
trial court harbored a bias that deprived him of (as he puts it) “a fair trial before an

impartial tribunal.”

We overrule Appellant’s first issue.

B. We overrule Appellant’s second issue claiming that the trial court
abused its discretion by granting a mistrial.

In his second issue, Appellant contends that the trial court abused its discretion

by granting a mistrial after the conclusion of the testimony in the bench trial. We

hold that the trial court did not abuse its discretion.

The trial court conducted a bench trial via Zoom. The trial record consumes

150 pages. At the close of the testimony, the trial court requested that the parties

submit their closing arguments in a letter. The trial court then heard an offer of proof

by Appellant. After the offer of proof, the trial court requested that the parties go off

the record. After the off-the-record discussion, the trial court declared a mistrial with

the following pronouncement:

Let me go back on the record.

Based on the frustrations that we’ve had with [Z]oom and based
on the evidence, I’m going to declare a mistrial for today’s trial. I will
notify the parties of the date that the trial will be reset. I also have
informed the parties that I’m going to look at the summary[-]judgment
order that was signed back in April. I’ll notify you guys of any further
settings.

Appellant’s counsel objected to the mistrial by stating, “[Appellant] just objects.”

Appellant argues (1) that the trial court erred because it should not have taken

the extreme step of granting a mistrial; (2) that if the trial court thought that it had

10
heard inadmissible evidence, it had the power to remedy the problem by disregarding

that evidence in deciding the case; and (3) that during the off-the-record discussion,

the trial court made statements critical of Appellant’s counsel. With these bases,

Appellant argues that

[b]ased upon the above unfolding of events—how Appellant went from
being able [to] make [a] closing argument to the court (albeit in writing)
to having a mistrial declared, with only Appellant’s counsel’s making an
offer of proof on an evidentiary issue occurring in the interim—the only
possible conclusion is that the trial court was operating unfairly, with bias
against Appellant’s counsel, and the mistrial was an unjust abuse of discretion by the
trial court. [Emphases added.]

As with his prior issue, Appellant believes the trial court acted improperly, but that

action does not compel the implication that Appellant claims is the only possible

conclusion—that the trial court was biased.

A decision to grant a mistrial is tested under an abuse-of-discretion standard.

Schlafly v. Schlafly, 33 S.W.3d 863, 868 (Tex. App.—Houston [14th Dist.] 2020, pet.

denied). “In reviewing the trial court’s decision, an appellate court does not substitute

its judgment for that of the trial court but decides whether the trial court’s decision

constitutes an abuse of discretion.” In re R.N., 356 S.W.3d 568, 575 (Tex. App.—

Texarkana 2011, no pet.). A trial court abuses its discretion when it acts arbitrarily or

unreasonably, or without reference to any guiding rules or principles. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007). The burden is on the appellant to produce a record

that shows the trial court abused its discretion. Roman v. Halverson, 587 S.W.3d 509,

512 (Tex. App.—El Paso 2019, pet. denied).

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 Here, taken at face value, the trial court ordered a mistrial because the

presentation of the case and problems with the operation of Zoom inhibited its ability

to decide the matter. This demonstrates the flaw in the linchpin of Appellant’s

argument: the trial court was granting a mistrial not because it had heard inadmissible

evidence but because problems with Zoom impaired its ability to hear the evidence at

all. Appellant also does not argue that the trial court’s justification for a mistrial, if

true, would be an invalid reason to declare a mistrial. Instead, he argues that we

should look behind the trial court’s statements and conclude that the trial court was

operating unfairly and had developed a bias toward Appellant’s counsel.

We, however, are not mind readers. We have no ability to look behind a trial

court’s statements and search for an ill motive unless there is something of record that

explicitly indicates that the trial court harbored a bias that rendered it unable to rule

fairly. Cf. Gaal v. State, 332 S.W.3d 448, 452 (Tex. Crim. App. 2011). 4

4
The appellant in Gaal challenged a trial court’s refusal to recuse itself after
stating “that the only plea bargain he would accept would be for the maximum
sentence.” Id. at 449. The appellant challenged a statement by the judge hearing the
recusal motion for not following a proper recusal standard because that comment
suggested the judge was relying on a subjective standard of bias rather than the
objective standard specified by Rule 18b(b)(2). Id. at 459. The Court of Criminal
Appeals described the statement as a recognition that the appellant was attacking the
recusal judge for not adopting the appellant’s interpretation of the trial judge’s motive
and that the recusal judge was correct in not speculating what motive the trial judge
was operating under unless the record indicated what that motive was:

The recusal judge’s remark, in context, was simply that there is nothing
in the record to rebut the natural inference that the trial judge’s
statement was based on [the] appellant’s pre[]trial behavior—as reflected

12
 Appellant also claims that explicit statements revealing a bias were made during

an unrecorded bench conference. This effort is also unavailing. We cannot rely on an

unrecorded bench conference, and even if we could, again, the trial court’s statements

do not reveal bias.

First, it is Appellant’s burden to bring forward a record to establish his claim of

error, and he has not done so when the reporter’s record does not include the bench

conference. See Haynes, 598 S.W.3d at 356 (showing that unclear record about events

during bench conference caused court to conclude that appellant had “failed to bring

forward a record clearly showing what comments, if any, the jury heard”); Huston v.

United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.—Houston [1st Dist.] 2014,

pet. denied) (holding that appellant bears burden to bring forward on appeal sufficient

record to show error committed by trial court and that appellant’s failure to obtain

reporter’s record containing challenged ruling made it impossible for appellate court

to determine that trial court had erred).

Second, we have already noted that expressions of annoyance and

dissatisfaction are not sufficient to show bias “unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible.” Haynes, 598

in the [c]ourt’s file. The file contained evidence of delaying tactics and
continued criminality on bond—an objectively reasonable basis to not
consider a plea bargain. It was [the] appellant who speculated about
what was going through the judge’s mind and read more into his
statement than it fairly conveys.

Id.

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S.W.3d at 356. Appellant claims that the trial court made two statements during the

bench conference, which he describes as follows:

Immediately after Appellant’s counsel finished making his offer of
proof, the trial court went off the record and admonished Appellant’s
counsel, stating, among other things, that “this was the worst
presentation of evidence the trial court judge had ever seen.” The trial
court also made a generic reference to “[Appellant’s counsel’s]
behavior[]” but did not elaborate. [Footnotes and record references
omitted.]

Even assuming that the trial court made the statements, these expressions of

annoyance do not establish that the trial court held a bias making it impossible for it

to rule fairly.

We overrule Appellant’s second issue.

C. We overrule Appellant’s third issue claiming that the trial court
should have sua sponte recused itself.

As we understand his third issue, Appellant argues that the trial court should

have sua sponte recused itself after granting a mistrial. Appellant does not cite Rule

18b of the Texas Rules of Civil Procedure that governs recusal, but we assume that

his argument is predicated on either Rule 18b(b)(1) when “the judge’s impartiality

might be reasonably questioned” or Rule 18b(b)(2) when “the judge has a personal

bias or prejudice concerning the subject matter or a party.” See Tex. R. Civ. P.

18b(b)(1), (2).

But Appellant references no motion to recuse that he filed, and we can find

none in the clerk’s record or any mention of recusal in the reporter’s record.

14
Appellant has failed to preserve error on his recusal claim. The Dallas Court of

Appeals faced a similar unpreserved recusal claim:

[Appellant] argues that the trial judge should have recused himself under
Texas Rule of Civil Procedure 18b(b)(1). Specifically, [appellant]
contends that the trial judge’s impartiality could reasonably be
questioned because while this case was pending [appellant]
simultaneously appealed a judgment rendered by the same judge in a
different case. See Russell v. Dallas [Cnty.], No. 05-17-01475-CV, 2019
WL 911713 (Tex. App.—Dallas Feb. 25, 2019, pet. denied) (mem. op.).
But [appellant] doesn’t assert that he filed a recusal motion in the trial
court, and we find none in the clerk’s record.

“The procedural requirements for recusal are mandatory and
failure to file a proper motion will result in waiver of the recusal issue on
appeal.” Johnson v. AT&T Servs., Inc., No. 05-10-01426-CV, 2012 WL
479736, at *1 (Tex. App.—Dallas Feb. 15, 2012, no pet.) (mem. op.).
Because [appellant] didn’t file a proper recusal motion in the trial court,
he forfeited his recusal argument.

Russell v. Dall. Cnty., No. 05-18-01400-CV, 2019 WL 5616899, at *1 (Tex. App.—

Dallas 2019, no pet.) (mem. op.). Similarly, Appellant has waived any recusal claims

by failing to assert them in the trial court.

We overrule Appellant’s third issue.

D. We overrule Appellant’s fourth issue claiming that the trial court
should not have sua sponte withdrawn its prior summary-
judgment orders.

In his fourth issue, Appellant contends that the trial court erred in sua sponte

withdrawing a prior summary-judgment ruling in his favor and then denying his

motion for summary judgment. The trial court signed these orders the day after it

15
had conducted the bench trial and declared a mistrial. The prior summary-judgment

order had granted Appellant’s motion for summary judgment to a limited extent and

had ordered Appellees “to sign the Truck’s title releasing [Appellee] J&K’s purported

lien and deliver same to [Appellant’s] attorney.” As noted, Appellees complied with

this order and delivered the title to Appellant.

Without citing authority—other than one section of the Uniform Commercial

Code—Appellant argues that nothing occurred during the bench trial to warrant the

trial court’s withdrawal of its prior summary-judgment order. Appellant also argues,

[T]o vacate its prior order meant that the trial court believed that this
case made it all the way from Appellant’s counsel’s January 3, 2019
demand letter . . . to the September 23, 2020 bench trial on the merits
over Appellee Fernandez’s claim of $400.00 when Appellant had already
paid $12,000.00 to purchase the truck and was paying $120.00 a month
to park it without being able to lawfully operate it.

We cannot penetrate what argument this sentence attempts to convey.

Also, nowhere in his argument does Appellant acknowledge that so long as a

trial court retains plenary jurisdiction, it may withdraw an interlocutory order. See Bi-

Ed, Ltd. v. Ramsey, 935 S.W.2d 122, 123 (Tex. 1996); Elder Constr., Inc. v. City of

Colleyville, 839 S.W.2d 91, 92 (Tex. 1992). The only check on this power is that a trial

court may not deprive a party of its ability to try the issues raised in a summary

judgment once the prior ruling is withdrawn. As the supreme court has explained,

[W]e do not agree that the trial court was authorized to determine prior
to trial that certain issues were established as a matter of law, conduct
the trial on that basis, and then withdraw its ruling without affording the
parties a fair opportunity to present to the jury their positions on issues

16
 no longer taken to be established. It was proper for the trial court to
reverse a prior interlocutory ruling upon reconsideration; it was not
proper, however, for the trial court to deny the parties a trial on the
issues thereby reinjected into the case.

Elder Constr., 839 S.W.2d at 92.

Appellant does not argue that the trial court’s withdrawal of its prior summary

judgment denied him the opportunity to present his case on issues no longer

established by a prior summary-judgment ruling. When the trial court declared a

mistrial, it indicated that it was going to reset the matter and also “look at the

summary[-]judgment order” that it had previously signed. The trial court then

resolved the case by granting Appellees’ summary-judgment motion. The trial court’s

approach was unusual, but that approach did not foreclose Appellant from presenting

the issues raised in his summary-judgment motion or by any other means he chose.

Further, Appellant suffered no prejudice from the trial court’s action because

Appellees delivered the tractor’s title in compliance with the order, and there is no

indication that Appellees sought return of the title when the trial court withdrew the

summary-judgment order. Indeed, the parties that could have complained of

prejudice from the trial court’s actions were Appellees, but they do not do so.

We overrule Appellant’s fourth issue.

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 E. We overrule Appellant’s fifth and sixth issues challenging the trial
court’s summary-judgment orders because Appellant’s brief is so
deficient that he has waived his claims of error.

1. The principles of briefing waiver that we apply to
Appellant’s fifth and sixth issues.

We dispose of Appellant’s fifth and sixth issues because they so violate—

indeed, ignore—the briefing rules that they waive error. The principles that we apply

to reach this conclusion apply to both issues; thus, we explain those principles before

reaching our discrete disposition of each issue.

It is within our discretion to conclude that a party has waived an argument

because it failed to adequately brief the issue. Fredonia State Bank v. Gen. Am. Life Ins.,

881 S.W.2d 279, 284 (Tex. 1994). Justice Osborne of the Dallas Court of Appeals

recently provided a concise description of the rules governing the proper briefing of

an issue:

An appellant has the burden to present and discuss his assertions of
error in compliance with the appellate briefing rules. Amir-Sharif v. Tex.
Dep’t of Family & Protective Servs., No. 05-13-00958-CV, 2015 WL
4967239, at *2 (Tex. App.—Dallas Aug. 20, 2015, pet. denied) (mem.
op.); Ayati-Ghaffari v. Gumbodete, No. 05-14-01019-CV, 2015 WL
4482158, at *3 (Tex. App.—Dallas July 23, 2015, no pet.) (mem. op.);
Cruz v. Van Sickle, 452 S.W.3d 503, 511 (Tex. App.—Dallas 2014, no
pet.). The Texas Rules of Appellate Procedure have specific
requirements for briefing. Tex. R. App. P. 38; Bolling v. Farmers Branch
Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.).
These rules require appellants to state their complaint concisely; to
provide understandable, succinct, and clear argument for why their
complaint has merit in fact and in law; and to cite and apply law that is
applicable to their complaint along with record references that are
appropriate. Tex. R. App. P. 38.1(f), (h), (i); RSL Funding, LLC v.
Newsome, 569 S.W.3d 116, 126 (Tex. 2018); see also Bolling, 315 S.W.3d at

18
 895. This requirement is not satisfied by merely making brief,
conclusory statements unsupported by legal citations. Canton-Carter v.
Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). And references to sweeping statements of general
law are rarely appropriate. Bolling, 315 S.W.3d at 896.

Eco Planet, LLC v. ANT Trading, No. 05-19-00239-CV, 2020 WL 6707561, at *5 (Tex.

App.—Dallas Nov. 16, 2020, pet. denied) (mem. op.) (Osborne, J., concurring).

The Rules of Appellate Procedure dictate that we require only substantial

compliance with the standards outlined in Justice Osborne’s quote. See Tex. R. App.

P. 38.9 (“Because briefs are meant to acquaint the court with the issues in a case and

to present argument that will enable the court to decide the case, substantial

compliance with this rule is sufficient . . . .”). “Accordingly, briefs are to be liberally,

but reasonably, construed so that the right to appeal is not lost by waiver.” Horton v.

Stovall, 591 S.W.3d 567, 569 (Tex. 2019). For example, when surveying an issue raised

by the party, we must address any issue fairly included in the issue as it is phrased by

the party. St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 215 (Tex. 2020).

We must also examine a party’s issue to decide whether it is “sufficient to put [us] on

notice” and “to invite [us] to correct any error of law.” Rohrmoos Venture v. UTSW

DVA Healthcare, LLP, 578 S.W.3d 469, 481 (Tex. 2019).

But we do not and cannot assume the responsibility of doing the parties’

briefing for them. Our role is to review the arguments made and dispose of the

appeals; we cannot search the record and research the law to formulate parties’

arguments for them. See Tex. R. App. P. 38.1(i); see also Bolling, 315 S.W.3d at 895.

19
Simply put, we are not advocates for any of the parties. Jones v. Am. Real Estate Inv.,

No. 05-19-00546-CV, 2020 WL 5834301, at *1 (Tex. App.—Dallas Oct. 1, 2020, no

pet.) (mem. op.). We adhere to this rule even when a party is pro se. Id.

When we encounter a party’s argument that fails to meet the standards of

adequate briefing, the question becomes how do we respond: Do we conclude that

the issue is waived or order the offending party to rebrief? The appellate rules give us

the discretion to request rebriefing for both substantive and formal defects, even if

those formal defects demonstrate a flagrant violation of the rules. See Tex. R. App. P.

38.9(a), (b); see also St. John Missionary Baptist Church, 595 S.W.3d at 215–16. The

appellate rules also instruct that we “must not affirm or reverse a judgment or dismiss

an appeal for formal defects or irregularities in appellate procedure without allowing a

reasonable time to correct or amend the defects or irregularities.” Tex. R. App. P.

44.3. “Nevertheless, it is ‘settled’ that ‘an appellate court has some discretion to

choose between deeming a point waived and allowing amendment or rebriefing’ and

‘whether that discretion has been properly exercised depends on the facts of the

case.’” Horton, 591 S.W.3d at 569–70 (quoting Fredonia State Bank, 881 S.W.2d at 284).

The supreme court has recently instructed us that we should exercise our discretion to

order rebriefing when a brief contains harmless procedural defects, and the technical

defects can be easily corrected. Id.

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 And in making the decision whether rebriefing should be permitted, we should

consider not only the appellant’s perspective but also that of the court and the

opposing party. As Justice Osborne summarized,

The interests of justice, which demands that cases be decided on the
merits when technical deficiencies in briefing can be easily corrected[,]
must be balanced against the importance of [Texas Rule of Appellate
Procedure] 38.1, which both requires the appellant to inform the court
of the basis for the relief sought and to put an appellee on notice of the
errors claimed and the basis for such errors so the appellee may
adequately defend the ruling on appeal.

Eco Planet, 2020 WL 6707561, at *6 (Osborne, J., concurring).

2. We hold that Appellant has waived his fifth issue.

In his fifth issue, Appellant argues that the trial court should not have granted

Appellees’ motion for summary judgment. The entirety of Appellant’s argument

under his fifth issue is as follows:

“In a summary[-]judgment case, the issue on appeal is whether the
movant met the summary[-]judgment burden by establishing that no
genuine issue of material fact exists and that the movant is entitled to
judgment as a matter of law. Fix v. Flagstar Bank, FSB, 242 S.W.3d 147,
153 (Tex. App.—Fort Worth 2007, pet. denied) (citations omitted).
Appellant incorporates herein by reference his Response to Defendant J&K Truck
Sales, LLC’s and Jose Fernandez’s No-Evidence and Traditional Motions for
Summary Judgment filed with the trial court on November 3, 2020, as well as his
Post-Hearing Brief on [Tex. Civ. Prac. & Rem. Code Ann.] §[ ]12.002 filed on
November 11, 2020.

Appellant would like to point out the fact that the exact same
evidence was proffered by Appellees J&K and Appellee Fernandez at
the September 23, 2020 trial that was relied upon in their motions for
summary judgment. However, at trial, with a preponderance of the
evidence standard, the trial court ordered a mistrial, but on Appellee[s’]
motions for summary judgment when the standard is much higher, the

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 trial court grant[ed] Appellees’ motions. [Record references omitted.]
[Emphasis added.]

The motions, response, and supporting evidence that Appellant casually refers us to

consume almost 400 pages of the clerk’s record. In essence, Appellant points us to

the title of the documents in the clerk’s record and expects us—without any guidance

even as to what the issues involved in the summary-judgment motions were—to sort

out whether the trial court ruled correctly. Appellant, who is represented by two

licensed attorneys, has put the burden on this court to write his brief for him. This

approach is not one involving harmless procedural defects or easily correctable

technical defects. Instead, he completely abdicates the duty to brief an issue in

compliance with the rules. When a party acts with such indifference to the rules’

substantive requirements, we prioritize the court’s obligations to process the cases of

the other litigants who have complied with the rules and not to allocate more of this

court’s limited resources to the disposition of this case by ordering Appellant to

rebrief.5

Appellant briefly describes Appellees’ motion and his response in his brief’s
5

statement of facts. The two paragraphs of description add little to his argument about
the documents:

v. Appellees J&K and Fernandez filed a single motion for both
traditional and no-evidence summary judgment. In support, Appellees
J&K and Fernandez offered only the evidence and testimony offered at
the September 23, 2020 bench trial, and their no-evidence motion for
summary judgment failed to point out the elements [that] Appellant
could not produce evidence on.

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 Also, Appellees did not file a brief in this case and have filed a response stating

that “Appellees[] J&K Truck Sales, LLC and Jose Fernandez have instructed counsel

that they do not wish to file a response brief and incur additional and further costs.

Appellees believe [that] the [c]lerk’s [r]ecord speaks for itself and [that] there is no

reversible error.” To order rebriefing would put Appellees to the possible expense of

filing a brief that they do not want to incur when they have already relied on the

inadequate brief filed by Appellant to avoid that expense. We exercise our discretion

to hold that Appellant waived the claim of error in his fifth issue.

We overrule Appellant’s fifth issue.

3. We hold that Appellant has waived his sixth issue.

In his sixth issue, Appellant argues in his heading that we should render

judgment “[b]ased [o]ff the September 23, 2020 [bench] [t]rial [r]ecord.” Appellant’s

argument under his sixth issue is even sparser than the one made under his fifth issue.

Appellant sets forth three sentences stating that:

Appellant knows that Texas Courts of Appeal do not substitute their
judgment for that of the fact[]finder at trial. However, due to the nature
of the proceedings below, Appellant believes this case is appropriate for
this [c]ourt to do just that. Appellant requests [that] this [c]ourt use the
record from the September 23, 2020 bench trial, in addition to the

w. Plaintiff/Appellant filed a response brief explaining where fact
issues exist and provided the entire reporter’s transcript and all the
exhibits from the September 23, 2020 trial in support, and after
arguments and post-hearing briefs, the trial court granted Appellees J&K
and Fernandez’s Motion for Summary Judgment. [Record references
omitted.]

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 ZOOM recording of the same trial, to render judgment in Appellant’s
favor.

This “argument” is defective not only for the reason we have outlined in regard to

Appellant’s fifth issue but also because Appellant now wants to impose a mission on

the court to find authority granting him relief that he acknowledges that we usually do

not grant. We hold that Appellant has waived any contention of error made in his

sixth issue.

We overrule Appellant’s sixth issue.

IV. Conclusion

Having overruled each of Appellant’s six issues, we affirm the trial court’s

judgment.

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: November 10, 2021

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