Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/2/2015 4:04:16 PM JEFFREY D. KYLE Clerk *1 ACCEPTED 03-14-00670-CV 5515528 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/2/2015 4:04:16 PM JEFFREY D. KYLE CLERK NO. 03 - 14 - 00670 - CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
MARY E. ALLEN,
Appellant,
v. WELLS BRANCH SELF STORAGE, Appellee.
On Appeal from the County Court at Law #2 Of Travis County, Texas BRIEF OF APPELLEE
COUNSEL:
Connie N. Heyer
1122 Colorado St.
Ste. 313
Austin, Texas 78701
Telephone: (512) 474-6901
Facsimile: (512) 474-0717
E-mail: connieheyer@niemannlaw.com
Oral Argument Not Requested
IDENTITY OF PARTIES AND COUNSEL Petitioner/Plaintiff:
Mary E. Allen
Counsel for Petitioner/Plaintiff:
Mary E. Allen, Pro Se
General Delivery
823 Congress, Ste. 150
Austin, Texas 78701
Telephone: (512) 701-8080
Respondent/Counter-Plaintiff:
Wells Branch Self-Storage
Counsel for Respondent/ Counter-Plaintiff:
Connie N. Heyer
Texas State Bar No. 00794373
1122 Colorado St., Ste. 313
Austin, Texas 78701
Telephone: (512) 474-6901
Facsimile: (512) 474-0717
TABLE OF CONTENTS I. STATEMENT OF FACTS ................................................................. 6
II. SUMMARY OF ARGUMENT .......................................................... 7
III. ARGUMENT ....................................................................................... 8
A. NO JUSTICIABLE QUESTION WAS PRESENTED TO THIS COURT ............................................................................. 8 B. APPELLANT WAIVED ARGUMENT ON APPEAL ............... 10 C. EVEN IF A JUSTICIABLE QUESTION WERE PRESENTED AND APPELLANT HAS NOT WAIVED ARGUMENT ON APPEAL, APPELLANT DID NOT ARGUE ANY REVERSIBLE ERROR .................. 10 IV. CONCLUSION .................................................................................. 11
V. APPENDIX ........................................................................................ 13
A. TRIAL COURT’S JUDGMENT (C-1-CV-14-007235) ........ TAB A B. TEXAS RULE OF APPELLATE PROCEDURE 38.1 .......... TAB B C. TEXAS RULE OF APPELLATE PROCEDURE 44.1 .......... TAB C *4 TABLE OF AUTHORITIES RULES
Tex. R. App. P. 44.1 ................................................................................. 7, 10
Tex. R. App. P. 38.1 ..................................................................................... 10
CASES
Benefit Trust Life Insurance Company v. Baker, 487 S.W.2d 406
(Tex. Civ. App .— Waco 1972, no writ) .......................................................... 7
Bullock v. American Heart Ass’n , 360 S.W.3d 661
(Tex. App.—Dallas 2012, pet. denied) ......................................................... 10
Chrysler Corp. v. Blackmon , 841 S.W.2d 844 (Tex. 1992) ........................... 9
Fiduciary Mortgage Co. v. City Nat’l Bank , 762 S.W.2d 196
(Tex. App.—Dallas 1988, writ denied) .......................................................... 9
Keyes Helium Co. v. Regency Gas Servs., L.P. , 393 S.W.3d 858
(Tex. App.—Dallas 2013, no pet.) ................................................................ 10
Liberty Mutual Fire Ins. Co. v. McDonough , 734 S.W. 2d 66
(Tex. App .— El Paso 1987, no writ) ............................................................... 7
Mansfield State Bank v. Cohn , 573 S.W.2d 181 (Tex. 1978) ......................... 8
Point Lookout West, Inc. v. Whorton , 742 S.W.2d 277 (Tex. 1987) .............. 9
Wheeler v. Green , 157 S.W.3d 439, 444 (Tex. 2005) ................................... 8
STATEMENT OF THE CASE This is an appeal from a judgment rendered by the County Court at Law #2 of Travis County, Texas awarding damages for past-due self-storage
facility rent and attorney’s fees to Wells Branch Self Storage.
ISSUE PRESENTED 1. Did Appellant properly present a justiciable question that this Court may rule on?
2. If Appellant’s brief is construed to present a justiciable question, is there any reversible error?
I. S TATEMENT OF F ACTS
On April 16, 2013, Mary E. Allen, Appellant, and Wells Branch Self Storage, Appellee, entered into a rental agreement whereby Appellant would
rent a storage unit from Appellee. Clerk’s Record at 51–55. Appellant
subsequently became delinquent on rental payments. Id. at 61.
In February of 2014, Appellant filed suit in Justice Court, Precinct Two of Travis County, Texas seeking damages and alleging that all rent amounts
had been paid on time and that an employee of Appellee had stolen a rental
payment. Id. at 80–82. In April of 2014, Appellee filed a counterclaim
alleging breach of contract and requesting damages for unpaid rent and
attorneys’ fees. Id. at 49–55. On July 11, 2014, the Justice Court rendered a
judgment in favor of Appellee awarding damages and attorneys’ fees. Id. at
42.
Appellant filed a motion for new trial with the County Court at Law #2 of Travis County, Texas in September of 2014. Id. at 119–20. A jury trial
was not requested. Id. On October 16, 2014, the County Court at Law
rendered a judgment in favor of Appellee awarding damages and attorneys’
fees plus court costs and post judgment interest at a rate of 5% per annum on
all amounts due from the date of the judgment until paid. Id. at 122.
Appellant filed notice of appeal on October 22, 2014. Id. at 123.
II. S UMMARY OF A RGUMENT
Appellant makes no point of error in her brief, but rather merely summarizes what she believes to be the facts of the case. Appellant’s brief
did not even assert that the evidence is factually or legally insufficient to
support the judgment of the trial court, but had it done so a justiciable issue
still would not exist. A point of error in which the assertion is made that the
evidence is factually or legally insufficient to support the judgment of the trial
court does not present a justiciable question. Benefit Trust Life Insurance
Company v. Baker, 487 S.W.2d 406 (Tex. Civ. App .— Waco 1972, no writ). It
is essential that the complaint on appeal be with regard to specific special
issues and not the verdict generally. Liberty Mutual Fire Ins. Co. v.
McDonough , 734 S.W. 2d 66, 70 (Tex. App .— El Paso 1987, no writ).
Appellant did not request or file findings of fact and conclusions of law that
the trial court relied on in support of the judgment rendered. There are no
specific issues or findings of which Appellant complains, thus Appellant’s
appeal must fail.
Further, per Rule 44.1 of the Tex as Rules of Appellate Procedure, a judgment may be reversed on appeal if the trial court made an error at law
that resulted in the rendition of an improper judgment or prevented the
appellant from properly presenting their case to the court of appeals.
Appellant’s does not argue that the trial court made any reversible error and
instead merely reiterates conclusory factual allegations previously made to the
trial court.
Therefore, this Court must affirm the trial court’s judgment because Appellant presents no justiciable question to this Court. This Court must
affirm the trial court’s judgment even if Appellant has been construed to have
presented a justiciable question because Appellant does not allege any
reversible error.
III. A RGUMENT
A. No Justiciable Question Was Presented to This Court While Appellant is a pro se litigant, Appellant must still comply with applicable substantive laws and rules of procedure. See Mansfield State Bank
v. Cohn , 573 S.W.2d 181, 184 (Tex. 1978). Although the court may liberally
construe pro se pleadings and briefs, pro se litigants are still required to
comply with applicable laws and rules of procedure. See Wheeler v. Green ,
157 S.W.3d 439, 444 (Tex. 2005). To allow otherwise would give pro se
litigants an unfair advantage over litigants represented by counsel. See
Mansfield State Bank , 573 S.W.2d at 184 .
The standard of review to be used by this Court is whether the evidence introduced at the trial court is legally and factually sufficient to support the
trial court’s judgment. See Chrysler Corp. v. Blackmon , 841 S.W.2d 844, 852
(Tex. 1992) (stating legal and factual sufficiency of the evidence is applicable
to an appeal of a nonjury trial). When a party appeals from a nonjury trial, it
must complain of specific findings and conclusions of the trial court that it
believes are in error, because a general complaint against the trial court’s
judgment does not present a justiciable question. See Fiduciary Mortgage
Co. v. City Nat’l Bank , 762 S.W.2d 196, 197–98, 204 (Tex. App.—Dallas
1988, writ denied) (requiring findings of fact and conclusions of law to be
requested or filed for there to be a justiciable question). If an appellant does
not request or file findings of fact and conclusions of law and does not
complain of a specific finding of fact, the court of appeals must presume that
all questions of fact were found in support of the judgment, and the reviewing
court must affirm that judgment on any basis. See Point Lookout West, Inc. v.
Whorton , 742 S.W.2d 277, 278 (Tex. 1987) (“Neither party requested
findings of fact and conclusions of law. Therefore, all questions of fact
should have been presumed found in support of the judgment, and the
judgment affirmed if it could be upheld on any basis.” (citing Lassiter v.
Bliss , 559 S.W.2d 353 (Tex. 1977)).
In this case, the Appellant did not comply with applicable rules of procedure by failing to request or file findings of fact and conclusions of law
and does not complain of a specific finding of fact. As such, there is no
justiciable question for this Court to decide, and the court must affirm the trial
court’s judgment.
B. Appellant Waived Argument on Appeal Appellant’s brief does not refer to or cite the record in any way. As such,
Appellant has waived any potential argument on appeal. Tex. R. App. P.
38.1(i). This Court has no duty to review a voluminous record without
guidance from an appellant to determine if an issue raised constitutes
reversible error. Keyes Helium Co. v. Regency Gas Servs., L.P. , 393 S.W.3d
858, 861 (Tex. App.—Dallas 2013, no pet.); Bullock v. American Heart
Ass’n , 360 S.W.3d 661, 665 (Tex. App.—Dallas 2012, pet. denied) (appellate
court has no duty or right to perform an independent review of the record and
applicable law to determine whether there was error).
C. Even If A Justiciable Question Were Presented and Appellant Has Not Waived Argument on Appeal, Appellant Did Not
Argue Any Reversible Error
On April 29, 2015, Appellant filed a hand-written brief with this Court.
Appellant’s brief merely reiterates the same unsubstantiated factual
allegations made previously by Appellant to the trial court.
Rule 44.1 establishes the standard for reversible error and states that a judgment may be reversed on appeal if the trial court made an error at law
that resulted in the rendition of an improper judgment or prevented Appellant
from properly presenting her case to this court. Even viewing Appellant’s
brief in the most favorable light, none of Appellant’s arguments can be
construed as arguing that the trial court made an error at law that resulted in
the rendition of an improper judgment or prevented Appellant from properly
presenting her case to this court. Therefore, this Court must affirm the trial
court’s judgment because Appellant does not allege any reversible error.
IV. C ONCLUSION
Appellee requests that this Court affirm the trial court’s judgment on the grounds that Appellant has not presented a justiciable question or,
alternatively, that Appellant has not alleged any reversible error.
Appellee also requests all such other relief to which it may be entitled. Respectfully submitted, __________________________ Niemann & Heyer, L.L.P Connie N. Heyer Counsel for Appellee Texas State Bar No. 00794373 1122 Colorado Street, Ste. 313 Austin, Texas 78701 Telephone: (512) 474-6901 Facsimile: (512) 474-0717 *12 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded to Appellant at her last known address of record, via certified mail,
return receipt requested on this ____ day of _________, 2015.
_______________________
Connie N. Heyer
CERTIFICATE OF COMPLIANCE I hereby certify on this ____ day of _________, 2015, that this document contains 1,280 words, which complies with Texas Rule of
Appellate Procedure 9.4(i)(B).
_______________________
Connie N. Heyer
APPENDIX
Tab Document Description
A Trial Court’s Judgment (C-1-CV-14-007235)
B Texas Rule of Appellate Procedure 38.1
C Texas Rule of Appellate Procedure 44.1
File Server:CLIENTS:WellsBranchSelfStorage:Allen Appeal:BriefIT5-15.pdf *14 CAUSE NO. C-l-CV-14-007235 MARY E. ALLEN, § IN THE COUNTY COURT
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JUDGMENT On the 16th day of October, 2014, came to be heard the above titled and numbered cause. The Plaintiff/Counter-Defendant, MARY E. ALLEN ("ALLEN"), appeared in
person and announced ready for trial. The Defendant/Counter-Plaintiff, WELLS
BRANCH SELF STORAGE ("WBSS"), appeared with counsel and announced ready for
trial. No jury was demanded and all issues were submitted to the Court. After hearing and
considering the pleadings, evidence and argument, the Court is of the opinion and finds
that Plaintiff, ALLEN, shall recover nothing from Defendant, WBSS; and also finds that
the Counter-Plaintiff, WBSS, is entitledto judgment against Counter-Defendant ALLEN.
IT IS, THEREFORE, ORDERED by the Court that the said Plaintiff, MARY E. ALLEN, take nothing by the original claim.
IT IS FURTHER ORDERED that the Counter-Plaintiff, WELLS BRANCH SELF STORAGE, recover from Counter-Defendant, MARY E. ALLEN, as follows:
$1,441.00 unpaid rent; $__/_^_£_ attorney's fees; or
$3ML as total sum; plus court costs; and post judgment interest at a rate ffO of 5% pei per annum on all amounts from the date of the judgment until paid, for which let execution issue
SIGNED this the 16th day ofOctober, 2014.
Case # C-l-CV-14-007235
IIIIII Hill
Yfr *15 Page 44 TEXAS RULES OF APPELLATE PROCEDURE
accurate copy to the clerk of the court in which the (2) Criminal Cases. If the clerk’s record or
case is pending. reporter’s record has not been timely filed, the
appellate court clerk must refer the matter to the appellate court. The court must make Notes and Comments whatever order is appropriate to avoid further Comment to 1997 change: The rule is new. delay and to preserve the parties’ rights.
(b) If No Clerk’s Record Filed Due to Appellant's Fault . If the trial court clerk failed to file the clerk’s record Rule 37. Duties of the Appellate because the appellant failed to pay or make
Clerk on Receiving the Notice arrangements to pay the clerk’s fee for preparing the of Appeal and Record clerk’s record, the appellate court may — on a party’s motion or its own initiative — dismiss the
37.1. On Receiving the Notice of Appeal appeal for want of prosecution unless the appellant was entitled to proceed without payment of costs. If the appellate clerk determines that the notice of appeal The court must give the appellant a reasonable
or certification of defendant's right of appeal in a criminal case opportunity to cure before dismissal. is defective, the clerk must notify the parties of the defect so that
it can be remedied, if possible. If a proper notice of appeal or (c) If No Reporter’s Record Filed Due to Appellant's certification of a criminal defendant's right of appeal is not filed Fault . Under the following circumstances, and if the in the trial court within 30 days of the date of the clerk's notice, clerk’s record has been filed, the appellate court may the clerk must refer the matter to the appellate court, which will — after first giving the appellant notice and a make an appropriate order under this rule or Rule 34.5(c)(2). reasonable opportunity to cure — consider and decide those issues or points that do not require a
37.2. On Receiving the Record reporter’s record for a decision. The court may do this if no reporter’s record has been filed because:
On receiving the clerk’s record or the reporter’s record, the
appellate clerk must determine whether each complies with the (1) the appellant failed to request a reporter’s Supreme Court’s and Court of Criminal Appeals’ order on record; or preparation of the record. If so, the clerk must endorse on each
the date of receipt, file it, and notify the parties of the filing and (2) (A) appellant failed to pay or make the date. If not, the clerk must endorse on the clerk’s record or arrangements to pay the reporter's fee to reporter’s record — whichever is defective — the date of receipt prepare the reporter’s record; and and return it to the official responsible for filing it. The appellate
court clerk must specify the defects and instruct the official to (B) the appellant is not entitled to proceed correct the defects and return the record to the appellate court by without payment of costs. a specified date. In a criminal case, the record must not be posted
on the Internet. Notes and Comments
37.3. If No Record Filed Comment to 1997 change: Former Rules 56 and 57(a) are merged. Subdivisions 37.2 and 37.3 are new.
(a) Notice of Late Record .
(1) Civil Cases . If the clerk’s record or reporter’s Rule 38. Requisites of Briefs record has not been timely filed, the appellate
clerk must send notice to the official 38.1. Appellant's Brief responsible for filing it, stating that the record is late and requesting that the record be filed The appellant’s brief must, under appropriate headings and within 30 days if an ordinary or restricted in the order here indicated, contain the following: appeal, or 10 days if an accelerated appeal. The appellate clerk must send a copy of this notice (a) Identity of Parties and Counsel . The brief must give to the parties and the trial court. If the clerk a complete list of all parties to the trial court's does not receive the record within the stated judgment or order appealed from, and the names and period, the clerk must refer the matter to the addresses of all trial and appellate counsel, except as appellate court. The court must make whatever otherwise provided in Rule 9.8. order is appropriate to avoid further delay and to preserve the parties' rights.
44
TEXAS RULES OF APPELLATE PROCEDURE Page 45
(b) Table of Contents . The brief must have a table of (1) Necessary Contents. Unless voluminous or
contents with references to the pages of the brief. impracticable, the appendix must contain a
The table of contents must indicate the subject matter copy of:
of each issue or point, or group of issues or points.
(A) the trial court’s judgment or other (c) Index of Authorities . The brief must have an index of appealable order from which relief is
authorities arranged alphabetically and indicating the sought;
pages of the brief where the authorities are cited.
(B) the jury charge and verdict, if any, or the (d) Statement of the Case . The brief must state concisely trial court’s findings of fact and
the nature of the case (e.g., whether it is a suit for conclusions of law, if any; and
damages, on a note, or involving a murder
prosecution), the course of proceedings, and the trial (C) the text of any rule, regulation, ordinance,
court's disposition of the case. The statement should statute, constitutional provision, or other
be supported by record references, should seldom law (excluding case law) on which the
exceed one-half page, and should not discuss the argument is based, and the text of any
facts. contract or other document that is central
to the argument.
(e) Any Statement Regarding Oral Argument . The brief
may include a statement explaining why oral (2) Optional Contents. The appendix may contain
argument should or should not be permitted. Any any other item pertinent to the issues or points
such statement must not exceed one page and should presented for review, including copies or
address how the court’s decisional process would, or excerpts of relevant court opinions, laws,
would not, be aided by oral argument. As required documents on which the suit was based,
by Rule 39.7, any party requesting oral argument pleadings, excerpts from the reporter’s record,
must note that request on the front cover of the and similar material. Items should not be
party’s brief. included in the appendix to attempt to avoid the
page limits for the brief.
(f) Issues Presented . The brief must state concisely all
issues or points presented for review. The statement 38.2. Appellee's Brief
of an issue or point will be treated as covering every
subsidiary question that is fairly included. (a) Form of Brief .
(g) Statement of Facts . The brief must state concisely (1) An appellee's brief must conform to the
and without argument the facts pertinent to the issues requirements of Rule 38.1, except that:
or points presented. In a civil case, the court will
accept as true the facts stated unless another party (A) the list of parties and counsel is not
contradicts them. The statement must be supported required unless necessary to supplement
by record references. or correct the appellant's list;
(h) Summary of the Argument . The brief must contain a (B) the appellee’s brief need not include a
succinct, clear, and accurate statement of the statement of the case, a statement of the
arguments made in the body of the brief. This issues presented, or a statement of facts,
summary must not merely repeat the issues or points unless the appellee is dissatisfied with
presented for review. that portion of the appellant's brief; and
(i) Argument . The brief must contain a clear and concise (C) the appendix to the appellee’s brief need
argument for the contentions made, with appropriate not contain any item already contained in
citations to authorities and to the record. an appendix filed by the appellant.
(j) Prayer . The brief must contain a short conclusion (2) When practicable, the appellee's brief should
that clearly states the nature of the relief sought. respond to the appellant's issues or points in the
order the appellant presented those issues or (k) Appendix in Civil Cases . points.
(b) Cross-Points .
45
Page 52 TEXAS RULES OF APPELLATE PROCEDURE
(c) reverse the trial court's judgment in whole or in part Rule 44. Reversible Error
and render the judgment that the trial court should
have rendered; 44.1. Reversible Error in Civil Cases
(d) reverse the trial court's judgment and remand the (a) Standard for Reversible Error . No judgment may be case for further proceedings; reversed on appeal on the ground that the trial court made an error of law unless the court of appeals
(e) vacate the trial court's judgment and dismiss the concludes that the error complained of: case; or (1) probably caused the rendition of an improper
(f) dismiss the appeal. judgment; or
43.3.Rendition Appropriate Unless Remand Necessary (2) probably prevented the appellant from properly presenting the case to the court of appeals.
When reversing a trial court's judgment, the court must
render the judgment that the trial court should have rendered, (b) Error Affecting Only Part of Case . If the error except when: affects part of, but not all, the matter in controversy and that part is separable without unfairness to the
(a) a remand is necessary for further proceedings; or parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error.
(b) the interests of justice require a remand for another The court may not order a separate trial solely on trial. unliquidated damages if liability is contested.
43.4. Judgment for Costs in Civil Cases 44.2. Reversible Error in Criminal Cases In a civil case, the court of appeals’ judgment should (a) Constitutional Error . If the appellate record in a
award to the prevailing party the appellate costs — including criminal case reveals constitutional error that is
preparation costs for the clerk’s record and the reporter’s record subject to harmless error review, the court of appeals — that were incurred by that party. But the court of appeals may must reverse a judgment of conviction or punishment tax costs otherwise as required by law or for good cause. unless the court determines beyond a reasonable doubt that the error did not contribute to the
43.5. Judgment Against Sureties in Civil Cases conviction or punishment.
When a court of appeals affirms the trial court judgment, (b) Other Errors . Any other error, defect, irregularity,
or modifies that judgment and renders judgment against the or variance that does not affect substantial rights
appellant, the court of appeals must render judgment against the must be disregarded. sureties on the appellant's supersedeas bond, if any, for the
performance of the judgment and for any costs taxed against the (c) Presumptions . Unless the following matters were appellant. disputed in the trial court, or unless the record
affirmatively shows the contrary, the court of 43.6. Other Orders appeals must presume: The court of appeals may make any other appropriate order (1) that venue was proved in the trial court;
that the law and the nature of the case require.
(2) that the jury was properly impaneled and Notes and Comments sworn; Comment to 1997 changes: Former Rules 80(a) - (c) and (3) that the defendant was arraigned;
82 are merged. Paragraph 43.2(e) allows the court of appeals to
vacate the trial court’s judgment and dismiss the case; paragraph (4) that the defendant pleaded to the indictment or
43.2(f) allows the court of appeals to dismiss the appeal. Both other charging instrument; and
provisions are new but codify current practice. Paragraph
43.3(a) is moved here from former Rule 81(c). Paragraph (5) that the court's charge was certified by the trial
43.3(b), allowing a remand in the interest of justice, is new. court and filed by the clerk before it was read
Subdivisions 43.4 and 43.5 are from former Rule 82. to the jury.
44.3. Defects in Procedure 52