Hal Rachal, Jr. v. Letkiewicz & Foster

• Court: Court of Appeals of Texas
• Decided: March 17, 2014
• Docket: 05-11-01708-CV
• Status: Published

Opinion

Affirmed and Opinion Filed March 17, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01708-CV

HAL RACHAL, JR., Appellant V. LYNDA L. LETKIEWICZ AND RHONDA GAYLE FOSTER, Appellees

On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-09-2413-2

MEMORANDUM OPINION Before Justices FitzGerald, Fillmore, and Evans Opinion by Justice FitzGerald Appellant, pro se, appeals the trial court’s judgment awarding damages and imposing a

constructive trust. In two issues, appellant appears to argue that the trial court erred in imposing a

constructive trust and the commingling doctrine does not apply. We affirm the trial court’s

judgment.

Lynda L. Letkiewicz, individually and as successor trustee of the Mary Louise Cornell

Trust (the “Trust”) and Rhonda Gail Foster (together, “Plaintiffs”) sued Hal Rachal for breach of

fiduciary duty, conversion, fraud, defalcation, and misapplication of fiduciary funds. Appellant

appeared pro se, and upon the conclusion of trial, the trial court awarded judgment against

appellant and in favor of Plaintiffs in the amount of $524,242.93. The judgment further provided

that Rachal comingled assets with his own, and therefore all transfers of funds to brokerage accounts, bank account balances and funds held in the name of Rachal or Rachal and Associates

or Rachal & Associates should be held in constructive trust and an equitable lien imposed for the

benefit of Plaintiffs on certain specified assets, including a residence located at 10555 Pagewood,

Dallas, Texas (the “Residence”).

In two issues, appellant complains about the imposition of a constructive trust on the

Residence and the application of the commingling doctrine. Appellant is pro se before this Court.

We hold pro se litigants to the same standards as licensed attorneys and require them to comply

with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181,

184–85 (Tex. 1978); Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas

2004, pet. denied). The rules of appellate procedure require a party’s brief to contain a “clear and

concise argument” for the party’s contentions and “appropriate citations to authorities and to the

record.” TEX. R. APP. P. 38.1(i). A party who fails to support his or her contentions with

authority or citations to the record when appropriate waives the issue due to inadequate briefing.

See Morrill v. Cisek, 226 S.W.3d 545, 548–49 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(holding party waived issues by failing to cite to record and authority); Lueg v. Lueg, 976 S.W.2d

308, 310 (Tex. App.—Corpus Christi 1998, pet. denied) (same). We are not required to sort

through the record to find facts to support appellant’s position. Otherwise, our independent

review of the record would transform the court from a neutral adjudicator to an advocate. Valdez

v. Avita, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).

Here, appellant not only failed to provide citations to the record; there is no reporter’s

record at all. The trial court denied appellant’s request to find him indigent, so there is nothing in

the record to suggest that appellant is unable to pay for a the record. We have granted appellant

several extensions on his briefing deadlines, so appellant has had more than adequate time to

procure the record. An appellant has the burden to present a record to the appellate court that

–2– shows the error about which he complains. Hiroms v. Scheffy, 76 S.W.3d 486, 489 (Tex. App. —

Houston [14th Dist.] 2002, no pet.). Moreover, appellant’s statement of facts does not relate to

the pleadings filed or the procedural events that occurred in the trial court. Likewise, his

argument consists of conclusions and does not provide meaningful analysis in support of his

contentions. Under these circumstances, we conclude appellant has waived any complaints

regarding the trial court’s judgment. The trial court’s judgment is affirmed.

/Kerry P. FitzGerald/ 111708F.P05 KERRY P. FITZGERALD JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

HAL RACHAL, JR., Appellant On Appeal from the Probate Court No. 2, Dallas County, Texas No. 05-11-01708-CV V. Trial Court Cause No. PR-09-2413-2. Opinion delivered by Justice FitzGerald. LYNDA L. LETKIEWICZ AND RHONDA Justices Fillmore and Evans participating. GAYLE FOSTER, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellees LYNDA L. LETKIEWICZ AND RHONDA GAYLE FOSTER recover their costs of this appeal from appellant HAL RACHAL, JR..

Judgment entered March 17, 2014

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

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