Richard Manning, Tammy Manning, and All Occupants of 1036 Sunset, Waco, TX 76704 v. Mae Johnson and Pat Williams

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-21-00010-CV

RICHARD MANNING, TAMMY MANNING, AND
ALL OCCUPANTS OF 1036 SUNSET, WACO, TX 76704, Appellants

V.

MAE JOHNSON AND PAT WILLIAMS, Appellees

On Appeal from the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 20200238CV2

Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
 OPINION

Richard Manning appeals a forcible entry and detainer judgment in favor of his landlords,

Mae Johnson and Pat Williams.1 On appeal, Manning, appearing pro se, argues that (1) the trial

court erred by failing to set aside its final judgment under Craddock v. Sunshine Bus Lines2

because Manning did not have notice of a final hearing, (2) the trial court erred by imposing

attorney fees as a sanction under Chapter 10 of the Texas Civil Practice and Remedies Code, (3)

the trial court’s judgment was not supported by legally and factually sufficient evidence, and (4)

the trial court erred by granting a continuance after it had granted a writ of possession.

We find that we lack jurisdiction to address the issue of possession in this case. Even so,

we address the issue of past due rent and attorney fees but conclude that (1) the trial court did not

abuse its discretion in overruling Manning’s request for a new trial on those issues based on

Craddock, (2) the trial court did not abuse its discretion in finding that the imposition of attorney

fees was a proper sanction, and (3) Manning has failed to adequately brief his remaining issues.

As a result, we affirm the award of past due rent and attorney fees.

I. Factual and Procedural Background

Manning leased a property located at 1036 Sunset in Waco, Texas (the Property), from

Johnson and Williams. The record shows that Johnson and Williams sent Manning notice in

November 2019 that his monthly lease payment would increase from $850.00 to $1,075.00

1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
2
per month. In February 2020, Johnson and Williams filed a petition to evict Manning and all

occupants of the Property for failure to pay rent. Although the record shows that Manning, who

represented himself, was personally served and acknowledged this service in later motions, he

did not appear for trial in front of the justice court. As a result, the justice court entered a default

judgment in favor of Johnson and Williams on February 18, which awarded them possession of

the Property, past due rent, and court costs. After Manning acknowledged that the justice court

had also required him to deposit past due rent and rent accrued during any appeal into its

registry, he appealed the justice court’s decision for trial de novo in the County Court at Law

No. 2 of McLennan County (County Court). Manning chose to represent himself in front of the

County Court.

Manning originally received notice that the eviction appeal hearing was set for April 17,

2020. After receiving the notice, Manning argued that he should have only been charged

$850.00 per month, not $1,075.00 per month, and filed a motion for reconsideration of the

amount of rent that was to be paid in the justice court’s registry. On that motion, and throughout

the proceedings, Manning listed the Property address as his address.3

Even though the County Court had not ruled on his motion, Manning deposited $850.00

or less for several months into the registry. On July 15, Johnson and Williams filed a verified

motion arguing that the justice court’s writ of possession should no longer be stayed pending the

appeal because Manning had failed to continue to deposit the full amount of rent into the registry

as required by Section 24.0054 of the Texas Property Code, which states, in relevant part:

3
Manning filed letters and pleadings on June 1, July 30, and August 3 with the County Court listing the Property as
his address.
3
 (a-4) During an appeal of an eviction case for nonpayment of rent, if a
tenant fails to pay rent into the justice court or county court registry as the rent
becomes due under the rental agreement in accordance with the Texas Rules of
Civil Procedure and Section 24.0053, the landlord may file with the county court
a sworn motion that the tenant failed to pay rent as required. . . .

....

(c) If the court finds that a tenant has failed to timely pay the rent into
the court registry on more than one occasion:

(1) the tenant is not entitled to stay the issuance of the
writ by paying the rent and the landlord’s reasonable attorney’s
fees, if any; and

(2) the county court shall immediately issue a writ of
possession.

TEX. PROP. CODE ANN. § 24.0054(a-4), (c).

On July 31, Manning moved to recuse the judge and stay the proceedings and filed a

motion to dismiss his own appeal for want of jurisdiction. In response, Johnson and Williams

argued that the recusal motion was untimely and groundless and moved for sanctions in the form

of attorney fees and incurred expenses. The recusal motion was overruled.

Johnson and Williams also filed a motion for continuance due to Manning’s recusal

motion, which delayed the consideration of their pretrial motions. Johnson and Williams

explained that they wished for the County Court to rule on their motion for a writ of possession

under Section 24.0054 of the Texas Property Code first because they would likely elect not to

have Johnson, who lived in California, travel for the final hearing if the motion were granted.

The County Court granted the motion for continuance on August 5 but did not set the case for

final hearing at that time.

4
 On August 7, 2020, the County Court held a hearing in which Manning admitted to

making lesser payments than ordered by the justice court for several months. Johnson and

Williams testified on the issue of attorney fees under Section 24.0054 with respect to that

motion. After reviewing the registry, the County Court concluded that the amount of the

deficiency of unpaid rent was $1,120.40. By written order on August 11, the County Court

found that Manning had failed to deposit into the registry the amount of rent as ordered by the

justice court on a timely basis on more than one occasion and issued a writ of possession in favor

of Johnson and Williams. The County Court also ordered Manning to pay Johnson and

Williams’s attorney fees related to the Section 24.0054 motion. The writ of possession was

executed on August 19, 2020, and Manning vacated the Property.

On September 3, 2020, Manning moved to set aside the order issuing a writ of possession

because of the “grammatical complexity” of Section 24.0054 of the Texas Property Code.

Although he acknowledged attendance at the hearing, he mislabeled the order issuing writ of

possession as a default judgment. To that motion, Manning attached an unsworn declaration

listing the Property address as his address and included his email address.

On September 30, 2020, Johnson and Williams filed a motion for sanctions for

reasonable expenses and attorney fees under Section 10.002 of the Texas Civil Practice and

Remedies Code for alleged inconvenience, harassment, and out-of-pocket expenses incurred or

caused by the litigation and by two appeals filed with the Tenth Court of Appeals that were

dismissed based on the lack of a final appealable order.

5
 Even though the issue of possession was already decided, the final hearing, which had

been rescheduled several times due to the COVID-19 pandemic, was ultimately set for

October 2, 2020. On September 16, the County Court mailed to the Property Manning’s notice

of the final hearing. The record shows that the county administrator and Johnson and Williams’s

counsel also emailed this notice to Manning on the same day.

Manning did not appear for the final hearing. At that hearing, the County Court noted

that the written notice of the hearing date had been returned as undeliverable and that Manning

had failed to provide an updated address. Johnson and Williams’s counsel informed the County

Court that he had sent notice of the hearing to Manning’s email address. The County Court

found that Manning had received proper notice of the hearing.

At the final hearing, Williams testified that the lease on the Property was executed in

January 2017, that it was a twelve-month lease obligating Manning to pay $850.00 per month,

and that Manning remained on the Property on a month-to-month basis after the written lease

term expired. Williams said that he notified Manning of an increase in rent to $1,075.00 per

month in a November 2019 letter, which he both hand delivered to Manning and sent by certified

mail. The original lease and notification of increased rent was introduced into evidence.

Williams testified that Manning only paid $850.00 in January and February of 2020 even though

the rent had increased. As a result, Williams testified that Manning was sent notices to vacate

the property before the forcible entry and detainer proceeding was filed with the justice court.

Williams also testified that Manning used the Property for commercial purposes, including

manufacturing and selling sheds.

6
 After Williams testified, the County Court noticed that he had not yet been sworn. At

that time, the County Court administered the oath to Williams and, after being properly sworn,

Williams testified that his prior testimony was “true and correct” and accurate. Johnson and

Williams’s counsel testified that he had spent twenty-two hours of time on the case, charging

$195.00 an hour, and that the total amount of attorney fees spent on the case was $4,290.00.

Counsel also asked for $3,500.00 in the event of an appeal to the court of appeals and another

$3,500.00 in the event of an appeal to the Texas Supreme Court.

On October 5, the County Court entered a judgment awarding Johnson and Williams

possession of the Property, $3,340.40 for unpaid rent, and attorney fees in the amount of

$11,290.00, which included $7,000.00 in conditional awards of appellate attorney fees that

would be remitted if the judgment were not appealed. The judgment included an express finding

that the Property was used “for both residential and business purposes.” Nothing in the judgment

suggested that the attorney-fee award was a sanction.

Manning moved to set aside the default judgment on the ground that he was not provided

with the notice that was mailed to the Property address. Manning’s original and first amended

motions did not expressly address whether he had received the notice of the hearing that was

emailed by the court administrator even though Manning listed that email in his motions to set

aside the default judgment. Manning also complained that the amounts awarded to Johnson and

7
Williams for unpaid rent and attorney fees were “inaccurate, unreasonable[,] and excessive.”

Manning lodged no complaint about the imposition of attorney fees as sanctions.4

The County Court set the motions to set aside its judgment for a hearing in January 2021.

At that hearing, counsel attached a September 16, 2020, email from the court administrator to

Manning’s email address, which attached notice of the final hearing. Counsel also separately

forwarded that message to Manning’s email address, as shown by the email chain admitted into

evidence, and Manning confirmed that the email address used in the email was his. The County

Court denied Manning’s motions.

II. We Lack Jurisdiction to Address the Issue of Possession

We first highlight the parameters of our jurisdiction. The trial court found that Manning

was using the Property for residential and commercial purposes. That finding was not

challenged by motion for new trial or on appeal. Section 24.007 of the Texas Property Code

states, “A final judgment of a county court in an eviction suit may not be appealed on the issue of

possession unless the premises in question are being used for residential purposes only.” TEX.

PROP. CODE ANN. § 24.007 (Supp.). As a result, we do not have jurisdiction over this appeal as

it relates to issues of possession. See In re High Pointe Invs., LLC, 552 S.W.3d 384, 388 (Tex.

4
“[A]n amended motion for new trial filed more than thirty days after the trial court signs a final judgment is
untimely.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). In an untimely third motion to set aside the
judgment, Manning mentioned sanctions for the first time and included claimed meritorious defenses, like
“Landlord did not terminate tenancy properly,” “Landlord has not properly brought the case,” “Bad housing
conditions,” “Retaliatory Eviction,” “Landlord violated the law Texas Property Code 24.0052,” and “Attorney’s fees
not part of suit.” “A trial court’s order overruling an untimely new trial motion cannot be the basis of appellate
review, even if the trial court acts within its plenary power period.” Id. “[I]f the court denies a new trial, the belated
motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set
forth in a timely motion,” id. (quoting Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex. App.—Austin 1992, no pet.)
(per curiam)); “it is a nullity for purposes of preserving issues for appellate review.” Id.
8
App.—Waco 2018, orig. proceeding); Rice v. Pinney, 51 S.W.3d 705, 707–08 (Tex. App.—

Dallas 2001, no pet.).

To the extent Manning argues that Craddock should be applied to issues of possession,

we find that Manning was present at the August 7, 2020, hearing after which the trial court

granted a writ of possession in favor of Johnson and Williams. As a result, Manning vacated the

Property before the final hearing, and his presence at the final hearing was not required on the

issue of possession because it had already been decided. See Marshall v. Hous. Auth. of City of

San Antonio, 198 S.W.3d 782, 787 (Tex. 2006); Holmes v. Al Jaafreh, No. 10-11-00320-CV,

2013 WL 2399059, at *1 (Tex. App.—Waco May 30, 2013, no pet.) (mem. op.); McElroy v.

Teague Hous. Auth., No. 10-10-00009-CV, 2012 WL 149227, at *1–2 (Tex. App.—Waco

Jan. 18, 2012, no pet.) (mem. op.); De La Garza v. Riverstone Apartments, No. 04-06-00732-CV,

2007 WL 3270769, at *1 (Tex. App.—San Antonio Nov. 7, 2007, no pet.) (mem. op.).

We dismiss all arguments made by Manning that relate to the issue of possession of the

Property.

III. Denying Manning’s Motion for New Trial Based on Craddock Was Not an Abuse of
Discretion

We next address Manning’s complaints related to the trial court’s denial of a new trial on

the issue of past due rent and attorney fees. “We review a trial court’s decision to deny a motion

for new trial under an abuse[-]of-discretion standard.” In re Marriage of Landry, No. 10-13-

00293-CV, 2014 WL 1775501, at *1 (Tex. App.—Waco Apr. 10, 2014, no pet.) (mem. op.)

(citing Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010)). “A trial court abuses

its discretion when it acts ‘“without reference to any guiding rules or principles” or, stated
9
another way, when the trial court acts in an arbitrary and unreasonable manner.’” Id. (quoting

City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985))).

“A trial court must set aside a post-answer default judgment when the defendant satisfies

the test articulated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124

(1939).” Id. “Under Craddock, the defendant must demonstrate that (1) his failure to appear

was not intentional or the result of conscious indifference; (2) there is a meritorious defense; and

(3) the granting of a new trial will not operate to cause delay or injury to the opposing party.” Id.

“However, when the defendant did not receive actual or constructive notice of trial, he

has met the first prong of Craddock, and due process prevents the application of the second and

third prongs of the Craddock test.” In re T.J.T., 486 S.W.3d 675, 680 (Tex. App.—Texarkana

2016, no pet.) (quoting Kuykendall v. Beverly, 436 S.W.3d 809, 814 (Tex. App.—Texarkana

2014, no pet.)). While we assume that Manning did not receive actual notice of the October 2

hearing, “[a]ctual notice is not the standard for determining whether due process had been

afforded” because “[d]ue process requires only that the notice given be reasonably calculated

under the circumstances to apprise the party of the trial date.” Broadway v. Boldes, No. 05-00-

00824-CV, 2001 WL 1289466, at *2 (Tex. App.—Dallas Oct. 25, 2001, no pet.) (not designated

for publication) (citing Withrow v. Schou, 13 S.W.3d 37, 40 (Tex. App.—Houston [14th Dist.]

1999, pet. denied)). “Such notice may be considered constructive notice.” Id.

“[P]arties have a continuing obligation under [R]ule 21a of the Texas Rules of Civil

Procedure to keep the court and the other parties apprised of a correct and current address where

10
they may be reached[,] and this obligation cannot be shifted to the court clerk or to an opposing

party.” Id. at *3 (citing Withrow, 13 S.W.3d at 41). “Texas courts have held that a party that

does nothing to protect its due process rights with respect to notice of a trial setting should not

complain on appeal that those rights have been violated.” Id. Here, the record showed that the

Property address was the only mailing address Manning had provided to the County Court and

opposing counsel. Manning was aware that the case was continued and would be scheduled for a

final hearing. Even so, he did not update his address with the County Court or make any

inquiries about a final setting. As a result, we decline to find that the County Court abused its

discretion in concluding that Manning’s “failure to update [his] address in the court’s records or

to make inquiries regarding the new trial setting demonstrated that [the] failure to appear at trial

was the result of conscious indifference rather than mistake or accident.” Id.

Also, Rule 57 of the Texas Rules of Civil Procedure states, “A party not represented by

an attorney shall sign his pleadings, state his address, telephone number, email address, and, if

available, fax number.” TEX. R. CIV. P. 57 (emphasis added). Manning listed the Property

address and his email address on pleadings. Rule 21a of the Texas Rules of Civil Procedure

states:

(a) Methods of Service. Every notice required by these rules, and
every pleading, plea, motion, or other form of request required to be served under
Rule 21, other than the citation to be served upon the filing of a cause of action
and except as otherwise expressly provided in these rules, may be served by
delivering a copy to the party to be served, or the party’s duly authorized agent or
attorney of record in the manner specified below:

(1) Documents Filed Electronically. A document filed electronically
under Rule 21 must be served electronically through the electronic filing
manager if the email address of the party or attorney to be served is on file
11
 with the electronic filing manager. If the email address of the party or
attorney to be served is not on file with the electronic filing manager, the
document may be served on that party or attorney under subparagraph (2).

(2) Documents Not Filed Electronically. A document not filed
electronically may be served in person, [by] mail, by commercial delivery
service, by fax, by email, or by such other manner as the court in its
discretion may direct.

TEX. R. CIV. P. 21a.

The record shows that Manning’s email address was not on file with the electronic filing

manager. As a result, “Rule 21a allowed the Notice [of trial setting] to be served by any of the

means listed in Rule 21a(a)(2), including by mail or by email.” Brandon v. Rudisel, 586 S.W.3d

94, 102 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (citing TEX. R. CIV. P. 21a(a)); see

Johnson v. Harris Cty., 610 S.W.3d 591, 595 (Tex. App.—Houston [1st Dist.] 2020, no pet.).

“[E]lectronic service is ‘complete on transmission of the document to the serving party’s

electronic filing service provider.’” Brandon, 586 S.W.3d at 102 (quoting TEX. R. CIV. P.

21a(b)(3)). The record showed that Johnson and Williams’s counsel and the court administrator

emailed the notice of final hearing to Manning’s email address listed in his pleadings. At the

final hearing, Manning admitted that the email address to which the notice was emailed was his

and that he used it during the pertinent time. As a result, we cannot conclude that the trial

court’s finding that Manning received constructive notice was an abuse of discretion. See id.;

Johnson, 610 S.W.3d at 595–96.

12
IV. The Trial Court Did Not Abuse Its Discretion in Finding that the Imposition of
Attorney Fees Was a Proper Sanction

Next, Manning argues that the trial court erred by awarding attorney fees as sanctions

under Chapter 10 of the Texas Civil Practice and Remedies Code, for several reasons.5 We

disagree.

Manning argues that the trial court’s order to pay attorney fees as sanctions failed to

adequately describe, with sufficient particularity, the conduct that the trial court claimed was

committed. Under the precedent of the Waco Court of Appeals, this issue has not been preserved

for review because Manning did not raise it below, even in his timely motions for new trial.

Windsor v. Round, 591 S.W.3d 654, 673 (Tex. App.—Waco 2019, pet. denied). He also

complains that he did not have an opportunity to be heard on the issue, but the record reflects

that Manning was present for the August 7 hearing that considered Johnson and Williams’s

motion for sanctions, and Manning also presented the issue at the motion for new trial hearing.

The only timely complaint before the trial court on the issue of sanctions was Manning’s

complaint that they were “inaccurate, unreasonable[,] and excessive.” “We review the

imposition of sanctions under Chapter 10 of the Texas Civil Practice and Remedies Code . . . for

an abuse of discretion.” Cox v. Vanderburg, No. 06-20-00078-CV, 2021 WL 4055487, at *10

5
Although Johnson and Williams filed a Chapter 10 sanctions motion, they argue that nothing in the record indicates
that the trial court awarded attorney fees on that basis. We disagree. Attorney fees are not generally available in
eviction cases. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Supp.). Under Chapter 24 of the Texas Property
Code, attorney fees in an eviction case that are unrelated to Section 24.0054 motions are only available if, among
other things, the landlord’s written demand to vacate the premises or a written lease warns the tenant that the
landlord will seek attorney fees in suit for forcible entry and detainer. See TEX. PROP. CODE ANN. § 24.006; Tillman
v. Lake Pointe Owners Grp., Inc., No. 07-19-00385-CV, 2020 WL 6253238, at *5 (Tex. App.—Amarillo Oct. 22,
2020, no pet.) (mem. op.). Because attorney fees were not statutorily authorized, we must presume that they were
awarded as Chapter 10 sanctions.
13
(Tex. App.—Texarkana Sept. 7, 2021, pet. filed) (mem. op.) (quoting Dike v. Peltier Chevrolet,

Inc., 343 S.W.3d 179, 183 (Tex. App.—Texarkana 2011, no pet.) (citing Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004))). “Under

this standard, courts view the evidence in the light most favorable to, and indulge every

presumption in favor of, the trial court’s action.” Id. (quoting Dike, 343 S.W.3d at 183 (citing In

re Liu, 290 S.W.3d 515, 519 (Tex. App.—Texarkana 2009, orig. proceeding)). “An appellate

court may reverse the trial court’s ruling only if the trial court acted without reference to any

guiding rules and principles, such that its ruling was arbitrary or unreasonable.” Id. (quoting

Dike, 343 S.W.3d at 183 (quoting Low, 221 S.W.3d at 614)). “A trial court abuses its discretion

in awarding sanctions only if the order is based on an erroneous assessment of the evidence or

the law.” Id. (quoting Dike, 343 S.W.3d at 183).

“Chapter 10 provides for an award of sanctions when a party shows . . . that the pleading

or motion was brought for an improper purpose.” Id. (quoting Mobley v. Mobley, 506 S.W.3d

87, 95 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. CIV. PRAC. & REM. CODE ANN.

§ 10.001; Low, 221 S.W.3d at 614–15)). “An improper purpose includes ‘to harass or to cause

unnecessary delay or needless increase in the cost of litigation.’” Id. (quoting TEX. CIV. PRAC. &

REM. CODE ANN. § 10.001(1)). “Chapter 10 specifies that one of the aims for imposition of

sanctions for the filing of frivolous or groundless pleadings is to ‘deter repetition of the conduct

or comparable conduct by others similarly situated.’” Id. (quoting Mobley, 506 S.W.3d at 95

(quoting TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(b))). “We construe the phrase ‘improper

purpose’ as the equivalent of ‘bad faith’ under Rule 13.” Id. (quoting Mobley, 506 S.W.3d at 95

14
(quoting Dike, 343 S.W.3d at 183–84)). “Each factual contention must have or be likely to

receive evidentiary support after a reasonable opportunity for discovery.” Pressley v. Casar, 567

S.W.3d 327, 333 (Tex. 2019) (per curiam).

“‘[I]mposition of sanctions is just’ when (1) there is a ‘direct relationship . . . between the

offensive conduct and the sanction imposed’ and (2) the sanctions are not excessive, i.e., ‘[t]he

punishment . . . fit[s] the crime.’” Cox, 2021 WL 4055487, at *10 (quoting TransAm. Nat. Gas

Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)). “In determining whether sanctions are

appropriate, the trial court must examine the facts available to the litigant and the circumstances

existing when the litigant filed the pleading.” Id. (quoting Dike, 343 S.W.3d at 184). Typically,

“[t]he party seeking sanctions has the burden of showing its right to relief.” Id. (quoting Dike,

343 S.W.3d at 184). However, the Waco Court of Appeals has said that, “[i]f the trial court

assesses sanctions . . . and the party upon whom sanctions have been assessed files a motion for

new trial, the party upon whom sanctions have been assessed has the burden to show entitlement

to the requested relief.” Beddingfield v. Beddingfield, No. 10-15-00344-CV, 2018 WL 6378553,

at *19 (Tex. App.—Waco Dec. 5, 2018, pet. denied) (mem. op.) (citing Cocke v. Saks, 776

S.W.2d 788, 790 (Tex. App.—Corpus Christi 1989, writ denied)). Also, because the trial court

did not issue findings of fact and conclusions of law, “the trial court’s judgment implies all

findings of fact necessary to support it.” Est. of Hines, No. 06-20-00007-CV, 2020 WL

5948803, at *5 n.14 (Tex. App.—Texarkana Oct. 8, 2020, no pet.) (mem. op.) (citing Pharo v.

Chambers Cty., Tex., 922 S.W.2d 945, 948 (Tex. 1996)); Avila v. Lone Star Radiology, 183

S.W.3d 814, 822 (Tex. App.—Waco 2005, no pet.).

15
 Here, Manning consistently argued that he should not have been charged $1,075.00 per

month in rent, without presenting any evidence to support his position despite having ample

opportunity to do so, including at the August 7 hearing when the issue of possession was

decided. A review of Manning’s pleadings could have led the County Court to conclude that he

had no meritorious defense to the forcible entry and detainer suit. The County Court here

expressly found that Manning violated the justice court’s order to pay rent of $1,075.00 per

month while the case was pending on appeal. In addition to violating that order, Manning filed

several frivolous pleadings, including a motion to dismiss his own suit for want of jurisdiction.

The County Court could have found that Manning’s recusal motion was groundless, as was his

objection to Johnson and Williams’s motion for continuance. Manning also filed two

interlocutory appeals that were dismissed by the Waco Court of Appeals for lack of jurisdiction.

Johnson and Williams alleged, and the County Court could have found, that Manning’s motions

and arguments were made solely for the purpose of delaying the proceedings and increasing

Johnson and Williams’s costs of litigation. No meritorious defense was raised in the hearing on

Manning’s timely motions for new trial. That, coupled with the written lease, notice of increased

rent, and notice to vacate the Property, could have ultimately led the County Court to conclude

that the appeal from the justice court was frivolous and groundless and that a new trial on the

issue of sanctions was unwarranted. As a result, we do not find that the County Court abused its

discretion in overruling Manning’s motion for new trial complaining of the imposition of

sanctions. We also find no abuse of discretion in the trial court’s finding that there was a direct

relationship between the filing of groundless and frivolous pleadings made for the purposes of

16
delay and increased litigation cost and the sanction of attorney fees expended by Johnson and

Williams to defend those pleadings.

As for the excessiveness of sanctions, Manning argues for the first time on appeal that the

trial court should have considered a lesser sanction. Because he did not raise this complaint to

the County Count, this issue is unpreserved. See Cox, 2021 WL 4055487, at *13 (citing TEX. R.

APP. P. 33.1; Sanchez v. Fiedler, No. 03-14-00182-CV, 2016 WL 4272111, at *9 (Tex. App.—

Austin Aug. 11, 2016, pet. denied) (mem. op.); (Werley v. Cannon, 344 S.W.3d 527, 535 (Tex.

App.—El Paso 2011, no pet.); Akhtar v. Leawood HOA, Inc., 525 S.W.3d 814, 820–21 (Tex.

App.—Houston [14th Dist.] 2017, no pet.)). Manning also states, in a conclusory manner, that

the sanction was excessive, but he failed to make any meaningful challenge to the amount of

attorney fees awarded at the motion for new trial hearing or on appeal. He did not challenge that

counsel’s testimony at the final hearing failed to support the amount awarded as attorney fees.

As a result, we cannot conclude that the trial court abused its discretion in determining that

counsel’s testimony was sufficient to support the sanctions award since “generally an

acknowledgment of the costs and fees incurred as a result of the sanctionable conduct is a good

starting point.” Kamel v. AdvoCare Int’l, L.P., No. 05-16-00433-CV, 2017 WL 1149669, at *5

(Tex. App.—Dallas Mar. 28, 2017, no pet.) (mem. op.) (explaining that proof of necessity or

reasonableness of attorney fees under Arthur Andersen & Co. v. Perry Equipment Corp., 945

S.W.2d 812 (Tex. 1997), is not required when fees are assessed as sanctions) (citing Gorman v.

Gorman, 966 S.W.2d 858, 868–69 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Low, 221

S.W.3d at 620–21).

17
 Because we find no abuse of discretion in the imposition of the attorney fees awarded as

sanctions, we overrule this point of error.

V. Manning Has Failed to Brief His Remaining Arguments

Because we have no jurisdiction over possession issues and have already affirmed the

trial court’s attorney fee award, we next consider arguments related to the award of past due rent.

In his last two points of error, Manning lodges a conclusory complaint about the legal and factual

sufficiency of the evidence and argues that the County Court erred by granting a continuance

after it had granted a writ of possession. We find both points inadequately briefed.

“Initially we must note that pro se litigants are held to the same standards as licensed

attorneys and must comply with all applicable rules of procedure.” In re C.N.M., No. 10-10-

00178-CV, 2011 WL 1049383, at *1 (Tex. App.—Waco Mar. 23, 2011, no pet.) (mem. op.)

(citing Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no pet.);

Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied)). “A

pro se litigant is required to properly present his case on appeal just as he is required to do at the

trial court.” Id. (citing Strange, 126 S.W.3d at 678). “This Court has no duty to perform an

independent review of the record and applicable law to determine whether there was error.” Id.

(citing Strange, 126 S.W.3d at 678). “Were we to do so, even on behalf of a pro se litigant, we

would be forced to stray from our role as neutral adjudicators and become an advocate for that

party.” Id. (citing Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet.

denied) (per curiam)). “Similarly, we cannot and will not speculate as to the substance of the

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issues [an appellant] urges us to address but fails to appropriately include in his brief.” Id.

(citing Strange, 126 S.W.3d at 678).

“The Texas Rules of Appellate Procedure control the required contents and organization

for an appellant’s brief.” Delta Cty. Appraisal Dist. v. PPF Gin & Warehouse, LLC, 632 S.W.3d

637, 652 (Tex. App.—Texarkana 2021, pet. filed) (quoting Valadez v. Avitia, 238 S.W.3d 843,

845 (Tex. App.—El Paso 2007, no pet.) (citing TEX. R. APP. P. 38.1)). “In order to avoid

forfeiting a legal argument for inadequate briefing, an appellant’s brief must contain ‘a clear and

concise argument for the contentions made, with appropriate citations to authorities and the

record.’” Id. (quoting TEX. R. APP. P. 38.1(i)). “Failure to cite legal authority or provide

substantive analysis of the legal issues presented results in waiver of the complaint.” Id.

(quoting TEX. R. APP. P. 38.1(i)).

The entire substance of Manning’s legal and factual sufficiency complaint reads, “The

Courts’ findings of fact are not legally or factually sufficient in that the evidence that was

presented were [sic] inaccurate and or falsified and the only witness was not even sworn in when

he testified. Furthermore, he was the plaintiff. Furthermore, his testimony was hearsay.” “Bare

assertions of error, without argument or authority, waive error.” Pettit v. Tabor, No. 06-19-

00002-CV, 2020 WL 216025, at *14 (Tex. App.—Texarkana Jan. 15, 2020, pet. denied) (mem.

op.); see Kennedy v. Jones, No. 06-19-00068-CV, 2020 WL 62022, at *3 (Tex. App.—

Texarkana Jan. 7, 2020, no pet.) (mem. op.) (“Briefing requirements are not met ‘by merely

uttering brief conclusory statements, unsupported by legal citations.’” (quoting Hollis v. Acclaim

Physician Grp., Inc., No. 02-19-00062-CV, 2019 WL 3334617, at *3 (Tex. App.—Fort Worth

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July 25, 2019, no pet.) (per curiam) (mem. op.))). This rule also applies to complaints about the

sufficiency of the evidence. See Coble v. Adams, No. 01-13-00562-CV, 2014 WL 6602480, at

*3 (Tex. App.—Houston [1st Dist.] Nov. 20, 2014, no pet.) (mem. op.) (citing Marin Real Estate

Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.)); Martin-

Simon v. Womack, 68 S.W.3d 793, 798 n.5 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

Because Manning fails to provide substantive analysis with appropriate reference to the record,

we overrule his legal sufficiency point. We also find that Manning failed to provide any relevant

authority to support his contention that Williams’s testimony was hearsay or that he was not

properly sworn and overrule those complaints based on the inadequate briefing.6

Johnson and Williams also argue that Manning failed to adequately brief his point of

error related to the trial court’s grant of a continuance. While Manning includes case citations in

his argument, he fails to cite relevant authority supporting his contention that reversal is

warranted because the trial court granted a continuance and does not explain why the issue is not

moot. See Smale v. Williams, No. 06-18-00055-CV, 2019 WL 490136, at *4 (Tex. App.—

Texarkana Feb. 8, 2019, no pet.) (mem. op.); In re Torres, No. 03-12-00156-CV, 2012 WL

1149301, at *1 (Tex. App.—Austin Apr. 4, 2012, no pet.) (mem. op.). He also fails to address

the arguments cited by Johnson and Williams as to why a continuance was necessary. As a

result, we find that the issue is inadequately briefed, and we decline to address it. See TEX. R.

6
Even so, we note that sworn testimony averring that a witness’s previously unsworn testimony was the truth is
sufficient to render the previously unsworn testimony competent evidence. Stephenson v. Lynch, No. 05-99-01874-
CV, 2001 WL 126403, at *5–6 (Tex. App.—Dallas Feb. 15, 2001, pet. denied) (not designated for publication); see
Beck v. State, 719 S.W.2d 205, 213 n.5 (Tex. Crim. App. 1986) (“When a witness reaffirms testimony he gave
before he was sworn, such testimony becomes competent.”).
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APP. P. 38.1(h); In re R.F.N., No. 10-03-081-CV, 2003 WL 23120211, at *3 (Tex. App.—Waco

Dec. 31, 2003, no pet.) (mem. op.).

We overrule Manning’s last two points of error.

VII. Conclusion

We dismiss all arguments made by Manning that relate to the issue of possession of the

Property for want of jurisdiction and affirm the trial court’s awards to Johnson and Williams of

past due rent and attorney fees.

Scott E. Stevens
Justice

Date Submitted: October 4, 2021
Date Decided: December 9, 2021

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