Alfred F. Bernat v. Tomas & Benancia Sotelo

• Court: Court of Appeals of Texas
• Decided: December 8, 2016
• Docket: 01-16-00235-CV
• Status: Published

Opinion

Opinion issued December 8, 2016

In The Court of Appeals For The First District of Texas ———————————— NO. 01-16-00235-CV ——————————— ALFRED F. BERNAT, Appellant V. TOMAS & BENANCIA SOTELO, Appellees

On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2015-55357

MEMORANDUM OPINION Alfred Bernat petitioned for a bill of review in the trial court. The

respondents, Tomas and Benancia Sotelo, moved to dismiss the petition. The trial

court granted the motion and dismissed the case. On appeal, Bernat fails to

challenge the sole ground for the dismissal with citations to the record and relevant

case authorities. Accordingly, we affirm the dismissal. Background

In October 2011, Alfred Bernat sued Tomas Sotelo and Benancia Sotelo in a

dispute over title to real property. The Sotelos moved for summary judgment

against Bernat’s claims, which the trial court granted in February 2013. Years

later, Bernat appealed the summary judgment. Our court dismissed the untimely

appeal for want of jurisdiction. See Bernat v. Sotelo, 01-13-00354-CV, 2014 WL

173479, at *2 (Tex. App.—Houston [1st Dist.] Jan. 16, 2014, pet. denied) (mem.

op.).

In September 2015, Bernat petitioned in the trial court for a bill of review.

The Sotelos moved to dismiss the case, observing that Bernat had brought the first

lawsuit as a plaintiff and had participated in the earlier proceedings, which the trial

court had resolved by summary judgment, and not by a default judgment. After

conducting a hearing, the trial court dismissed the case.

Discussion

Proceeding pro se, Bernat raises various challenges to the course of

proceedings in the underlying case, including that: (1) the real estate transaction

that formed the basis of his suit was illegal (2) he never waived his right to trial by

jury (3) the trial court lacked jurisdiction (4) an affidavit was unconstitutionally

notarized and (5) the court improperly acted sua sponte when a constitutional right

was at stake. Bernat further claims that the underlying trial court judgment is void

2 because (1) no real estate contract existed between Bernat and the Sotelos (2) only

one final judgment may be enforced (3) the judgment failed to identify the parties

and (4) the interlocutory judgment improperly became final. Bernat attacks the

integrity of the Sotelos, opposing counsel, and the trial court judge, accusing them

of conspiring against him.

In his brief, Bernat does not cite to relevant legal authority, attempt to apply

relevant authority to the facts of this appeal, or cite to the appellate record.

I. Standard of Review and Applicable Law

A bill of review is an equitable proceeding brought to set aside a judgment that is

no longer subject to challenge by a motion for new trial or appeal. Frost Nat’l

Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010); Caldwell v. Barnes, 154

S.W.3d 93, 96 (Tex. 2004). A bill of review plaintiff must plead and prove (1) a

meritorious defense to the underlying cause of action, (2) which the plaintiff was

unable to present due to the fraud, accident or wrongful act of the opposing party

or official mistake, (3) unmixed with any negligence of his own. Caldwell, 154

S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d 404, 406–07 (Tex. 1979). A bill of

review plaintiff claiming lack of notice of a trial setting is relieved of proving the

first two elements, but still must prove the third element: lack of fault or

negligence. Mabon Ltd. v. Afri–Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex.

2012) (per curiam); Caldwell, 154 S.W.3d at 96–97. This element requires a party

3 to show that it diligently pursued all adequate legal remedies. Mabon Ltd., 369

S.W.3d at 813. We review a trial court’s ruling on a bill of review for an abuse of

discretion, indulging every presumption in favor of the court’s ruling. Davis v.

Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

We hold a self-represented litigant, as Bernat is in this appeal, to the same

standard as a licensed attorney. Kanow v. Brownshadel, 691 S.W.2d 804, 806

(Tex. App.—Houston [1st Dist.] 1985, no writ). There cannot be two sets of

procedural rules, one for litigants with counsel and the other for litigants

representing themselves. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85

(Tex. 1978). Litigants who represent themselves thus must comply with applicable

rules of court. Id. at 185.

A complaint on appeal must address specific errors and not merely attack the

trial court’s order in general terms. McGuire v. McGuire, 4 S.W.3d 382, 385 (Tex.

App.—Houston [1st Dist.] 1999, no pet.); Hollifield v. Hollifield, 925 S.W.2d 153,

155 (Tex. App.—Austin 1996, no writ).

Texas Rule of Appellate Procedure 38.1(h) requires that an appellant’s brief

“must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.” Morrill v. Cisek, 226

S.W.3d 545, 548 (Tex. App.—Houston [1st Dist.] 2006, no pet.); TEX. R. APP. P.

38.1(h). “Rule 38 requires [a party] to provide us with such discussion of the facts

4 and the authorities relied upon as may be requisite to maintain the point at issue.”

Morrill, 226 S.W.3d at 548; Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,

106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

Conclusory statements, unsupported by legal and record citations, do not meet the

requirements of Rule 38. See Morrill, 226 S.W.3d at 548; Tesoro, 106 S.W.3d. at

128. Adequate briefing includes proper citation to the record. See Borisov v.

Keels, 01-15-00522-CV, 2016 WL 3022603, at *1 (Tex. App.—Houston [1st Dist.]

May 26, 2016, pet. denied); Ashley Furniture Indus. Inc. ex rel. RBLS Inc. v. L.

Off. of David Pierce, 311 S.W.3d 595, 597 (Tex. App.—El Paso 2010, no pet.); In

re M.J.G., 248 S.W.3d 753, 760 (Tex. App.—Fort Worth 2008, no pet.); Curtis v.

Comm’n for Lawyer Discipline, 20 S.W.3d 227, 236 (Tex. App.—Houston [14th

Dist.] 2000, no pet.).

II. Analysis

The Sotelos moved to dismiss Bernat’s bill of review based on alleged

pleading defects. The trial court granted the motion. Bernat does not address

either the motion to dismiss or the trial court’s ruling in his brief.

Bernat raises numerous complaints on appeal. None of these complaints,

however, is accompanied by citations to the record, nor is any complaint related to

either the motion to dismiss or the trial court’s order by analysis of the record or

citation to relevant authority. Adequate briefing requires proper citation to the

5 record and analysis of the applicable law. See Borisov, 2016 WL 3022603, at *1;

Ashley Furniture Indus., 311 S.W.3d at 597; In re M.J.G., 248 S.W.3d at 760;

Curtis, 20 S.W.3d at 236.

Accordingly, we hold that Bernat has waived his complaints due to

inadequate briefing.

Conclusion

We affirm the judgment of the trial court.

Jane Bland Justice

Panel consists of Justices Radack, Jennings, and Bland.