Stephan Gonzalez v. Stephanie Gonzalez

AFFIRM; and Opinion Filed December 29, 2015.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01361-CV

STEPHAN GONZALEZ, JESSIE GONZALEZ, AND LENA MARTINEZ
D/B/A MARTINEZ OFFICE SOLUTIONS AND NOTARY SERVICES, Appellants
V.
STEPHANIE GONZALEZ, Appellee

On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-04009

MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Schenck
Opinion by Justice Lang-Miers
This case concerns three commercial properties in Dallas, Texas owned by appellee

Stephanie Gonzalez. Stephanie filed suit against members of her family and a notary after

Stephanie learned that two fraudulent deeds had been filed purporting to transfer title to her

properties first from Stephanie to her brother and then from Stephanie’s brother to her uncle.

After a nonjury trial during which witnesses from both sides testified, the trial court found in

favor of Stephanie. With respect to Stephanie’s claim for declaratory judgment and trespass to

try title, the trial court declared the two deeds at issue to be null and void. With respect to

Stephanie’s claim for violation of Texas Civil Practice and Remedies Code section 12.002

(relating to fraudulent claims against real property) against her father, appellant Stephan

Gonzalez, the trial court awarded Stephanie $10,000 in actual damages and $25,000 in punitive
damages. And with respect to Stephanie’s civil conspiracy claim, the trial court awarded

Stephanie $10,000 in actual damages jointly and severally against (i) Stephan, (ii) Stephanie’s

uncle, appellant Jessie Gonzalez, and (iii) the person who notarized the deeds, appellant Lena

Martinez d/b/a Martinez Office Solutions and Notary Services.

In seven issues on appeal appellants argue that (1) the trial court “erred in failing to

dismiss, setting, and trying the cases after it was non-suited,” and (2) the evidence is insufficient

to support Stephanie’s claim for civil conspiracy against Jessie and Lena. Because all dispositive

issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We

resolve appellants’ issues against them and affirm.

APPELLANTS’ FIRST ISSUE

In their first issue appellants argue that the trial court erred when it failed to dismiss

Stephanie’s case after it was nonsuited. Appellants’ complaint arises from the following

exchange that occurred after counsel stated their appearances on the record at the beginning of a

trial setting in October 2013:

THE COURT: Prior to going on to the record, the Court informed counsel that it
was ready to proceed on the trial that is scheduled for this morning.
I understand from you, Mr. Tafel [counsel for Stephanie], that you
are nonsuiting the plaintiff’s claims, correct, sir?

MR. TAFEL: Correct, Your Honor.

....

THE COURT: . . . Is there anything further that we need to make a record about,
counsel?

MR. TAFEL: No, Your Honor.

On appeal, appellants argue that it was an abuse of discretion to subsequently try the case

in June 2014 and render judgment in favor of Stephanie because Stephanie’s oral motion for

nonsuit immediately “extinguished” her claims.

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 We must first determine the threshold issue of whether appellants preserved their

complaint for appellate review. See In re A.B.P., 291 S.W.3d 91, 97 (Tex. App.—Dallas 2009,

no pet.). Generally, to preserve a complaint for appellate review, a party must timely present the

complaint to the trial court and seek a ruling on the complaint. See TEX. R. APP. P. 33.1(a) (as

prerequisite to presenting complaint for appellate review, record must show (1) party presented

timely request, motion, or objection to trial court sufficient to make trial court aware of

complaint, and (2) trial court ruled or refused to rule); In re L.M.I., 119 S.W.3d 707, 711 (Tex.

2003). “Without a proper presentation of the alleged error to the trial court, a party does not

afford the trial court the opportunity to correct the error.” Birnbaum v. Law Offices of G. David

Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.—Dallas 2003, pet. denied). In this case, not

only did appellants not object when the case was reinstated, they affirmatively indicated that they

did not object. As a result, this issue was not preserved for appellate review.

Even if this issue had been preserved for our review, however, we would resolve it

against appellants. The record shows that immediately after Stephanie’s counsel told the trial

court that Stephanie was nonsuiting her claims, (1) Stephanie addressed the court off the record

and told the trial court that she did not want to nonsuit her claims, and (2) appellants’ counsel

indicated that he did not object to a reinstatement:

THE COURT: We are back on the record[.] After the Court went off the record
earlier and Mr. Tafel indicated that he was nonsuiting the
plaintiff’s claim in the above cause number, the Court was advised
by Ms. Gonzalez, who appeared in open court and advised the
Court that she had not given the authorization for the nonsuiting of
her case. Accordingly, the Court is reinstituting her case, and I
understand that, Mr. Tafel, you have no opposition to same; is that
correct, sir?

MR. TAFEL: That’s correct, Your Honor.

THE COURT: And Mr. Perez [counsel for appellants], I further understand you
have no opposition under the circumstances to the Court
reinstating the nonsuited matter, correct, sir?

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 MR. PEREZ: I have no objection if the Court has—[Stephanie] has that authority
and the Court can withdraw the notice of nonsuit. . . .

It is well settled that a plaintiff’s right to take a voluntary pretrial nonsuit of the plaintiff’s

claims “is absolute and cannot be denied.” Griffin v. Miles, 553 S.W.2d 933, 935 (Tex. App.—

Houston [14th Dist.] 1977, writ dism’d by agr.). As a result, as a general rule, a nonsuit

extinguishes the plaintiff’s claims immediately. See, e.g., In re Greater Houston Orthopaedic

Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (orig. proceeding) (per curiam) (“Granting a

nonsuit is a ministerial act, and a plaintiff’s right to a nonsuit exists from the moment a written

motion is filed or an oral motion is made in open court, unless the defendant has, prior to that

time, sought affirmative relief.”) But in this case, the motion for nonsuit was essentially a

misstatement by Stephanie’s counsel made without his client’s authority. Moreover, counsel for

both sides indicated that they did not oppose a reinstatement. We resolve appellants’ first issue

against them.

APPELLANTS’ REMAINING ISSUES

In their remaining six issues, combined into one argument in their brief, appellants appear

to challenge the legal and factual sufficiency of the evidence supporting Stephanie’s civil

conspiracy claim against Jessie and Lena. Appellants phrase their issues as follows (including

duplicate issues V and VI):

II. There is no evidence that Jessie Gonzalez was involved in any meeting of
the minds to accomplish any unlawful purpose or lawful purpose by
unlawful means.

III. There is insufficient evidence that Jessie Gonzalez was involved in any
meeting of the minds to accomplish any unlawful purpose or lawful
purpose by unlawful means.

IV. It is against the great weight and preponderance of the evidence to find
that Jessie Gonzalez was involved in any meeting of the minds to
accomplish any unlawful purpose or lawful purpose by unlawful means.

V. Lena Martinez was involved [sic] in any meeting of the minds to
accomplish any unlawful purpose or lawful purpose by unlawful means.
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 VI. Lena Martinez was involved [sic] in any meeting of the minds to
accomplish any unlawful purpose or lawful purpose by unlawful means.

VII. It is against the great weight and preponderance of the evidence to find
that Lena Martinez was involved in any meeting of the minds to
accomplish any unlawful purpose or lawful purpose by unlawful means.

With respect to these six issues, appellants’ entire argument is limited to four sentences

contained in a single paragraph:

[Stephanie] has failed to sustain her burden of proof as to an essential element of
conspiracy, i.e. a meeting of the minds to accomplish an unlawful purpose by
unlawful means or lawful purpose by unlawful means. Schlumberger Well Sur.
Corp. vs. Nortex Oil and Gas Corp., 435 SW2d 854 (Tex. 1968). Great National
Life Ins. Co. v. Capa, Tex 377 S.W. 2d 632 (Tex. 1964). [Stephanie] must
establish that [Jessie and Lena] had actual knowledge the fraudulent making or
recording of a deed was to occur. (Schlumberger, supra). There is no evidence of
such actual knowledge. Alternatively there is insufficient evidence thereof and/or
such a finding would be against the great weight and preponderance of the
evidence.

Under our rules of appellate procedure an appellant’s brief must contain a clear and

concise argument that includes appropriate citations to legal authority and to the appellate record.

See TEX. R. APP. P. 38.1(i). Appellants have not met that requirement. Although they generally

cite to two cases, they do not cite to a specific page or proposition within those cases or

otherwise explain why those cases are relevant. Appellants also do not identify or discuss the

appropriate standard of review, nor do they cite the appellate record or identify or analyze any of

the evidence presented in the trial court. Appellants also do not refer to or analyze any of the

trial court’s findings of fact or conclusions of law. As a result, appellants’ remaining issues

present nothing for our review. See id.; see also Bolling v. Farmers Branch Indep. Sch. Dist.,

315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.) (“Only when we are provided with

proper briefing may we discharge our responsibility to review the appeal and make a decision

that disposes of the appeal one way or another.”); Santillan v. Nat’l Union Fire Ins. Co., 166

S.W.3d 823, 824 (Tex. App.—El Paso 2005, no pet.) (complaint waived on appeal because

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appellant did not discuss applicable standard of review or facts and authorities supporting

complaint).

CONCLUSION

We resolve appellants’ issues against them and affirm the trial court’s judgment.

/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE

141361F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

STEPHAN GONZALEZ, JESSIE On Appeal from the 116th Judicial District
GONZALEZ, AND LENA MARTINEZ Court, Dallas County, Texas
D/B/A MARTINEZ OFFICE SOLUTIONS Trial Court Cause No. DC-11-04009.
AND NOTARY SERVICES, Appellants Opinion delivered by Justice Lang-Miers.
Justices Brown and Schenck participating.
No. 05-14-01361-CV V.

STEPHANIE GONZALEZ, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellee Stephanie Gonzalez recover her costs of this appeal from
appellants Stephan Gonzalez, Jessie Gonzalez, and Lena Martinez D/B/A Martinez Office
Solutions and Notary Services.

Judgment entered this 29th day of December, 2015.

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