in the Estate of Richard Elwood Newman

• Court: Court of Appeals of Texas
• Decided: June 13, 2018
• Docket: 04-17-00209-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-17-00209-CV

IN THE ESTATE OF Richard Elwood NEWMAN, Deceased

From the County Court, Wilson County, Texas Trial Court No. PR-07781 Honorable Richard L. Jackson, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: June 13, 2018

AFFIRMED

Appellant Leta Davis-Newman, acting pro se, challenged the probate of her husband’s

1983 will and her stepson’s actions as independent executor of the will. The trial court declared

Leta a vexatious litigant and dismissed her claims with prejudice. She appeals. Because Leta’s

brief does not present any issue for appellate review, we affirm the trial court’s judgment.

BACKGROUND 1

In 1983, Richard Elwood Newman executed a Last Will and Testament. He declared that

(1) he was a single man, having been divorced in 1982; (2) he had two children, Richard David

Newman and Carol Ann Jenkins; and (3) he had one step-daughter, Mary Colleen Young.

Newman appointed his son Richard to serve as Independent Executor of his will. Later, Newman

1 Because Appellant has presented no arguments, we provide a very limited recitation of the facts. 04-17-00209-CV

married Appellant Leta Davis-Newman; they were still married when Newman died. After

Newman’s death, Leta continued to reside in the marital home.

After Richard applied to probate Newman’s 1983 will, Leta challenged the will and

claimed Richard was not properly performing his fiduciary duties. She alleged, for example, he

failed “to acknowledge [her] surviving spouse rights by not doing the proper paper work so [she]

would receive [her] homestead exemption.” Both sides filed more motions and responses, and the

trial court held several hearings.

In its final judgment, the trial court found that Leta voluntarily absented herself from the

homestead property and relinquished all her rights in it. The trial court dismissed with prejudice

all of Leta’s claims, declared her a vexatious litigant, and ordered her to reimburse Richard for

2015 taxes and insurance on the property. Leta appeals.

ANALYSIS

A. Appellant’s Brief

Leta’s brief 2 identifies fifteen issues which she presents as questions about the acts or

omissions of the parties and the trial court. Of the fifteen questions, eleven address the parties’

actions; only four may be construed to challenge the trial court’s conduct. See First United

Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017) (requiring courts of

appeals “to construe briefing ‘reasonably, yet liberally, so that the right to appellate review is not

lost by waiver.’” (quoting Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008))).

To support the issues she raises, Leta’s brief presents her Summary of the Argument and

Argument sections in the following manner. She attached three sections from the Estates Code,

i.e., sections 102.002, 102.003, and 102.005; one case, Copeland v. Tarrant Appraisal Dist., 906

2 Except for the Appendix, all of Leta’s brief is handwritten. Her brief includes a thirteen-page Statement of the Case, a three-page list of Issues Presented, a seventeen-page Statement of Facts, and a three-page Prayer.

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S.W.2d 148, 150 (Tex. App.—Fort Worth 1995, writ denied); a one-page excerpt from an

unidentified document; and a one-page table titled “Life Estate and Remainder Interest Tables.”

At the beginning of these six attachments, she writes: “These laws & charts are my Summary of

the Argument & Argument as they are very clear.”

B. No Arguments or Citations

Leta was required to file a brief that “contain[s] a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.” See TEX. R. APP. P.

38.1(i); ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Construing

her brief reasonably yet liberally, we nevertheless necessarily conclude that she did not. See

Parker, 514 S.W.3d at 222 (quoting Perry, 272 S.W.3d at 587).

Leta’s brief provided excerpts of authorities, but she gave no explanation of how the

authority applies or how the authority shows the trial court committed reversible error; providing

excerpts of authorities is not a substitute for argument. See TEX. R. APP. P. 38.1(i) (requiring “clear

and concise argument for the contentions made”); Lowry v. Tarbox, 537 S.W.3d 599, 620 (Tex.

App.—San Antonio 2017, pet. denied) (“When appellants fail to discuss the evidence supporting

their claim or apply the law to the facts, they present nothing for review.”); Marin Real Estate

Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.) (“A failure to

provide substantive analysis of an issue waives the complaint.”). “When [as here] an appellant

fails to cite applicable authority, fails to provide relevant citations to the record, or fails to provide

substantive analysis for an issue presented in the brief, nothing is presented for our review.” See

Tchernowitz v. The Gardens at Clearwater, No. 04-15-00716-CV, 2016 WL 6247008, at *1 (Tex.

App.—San Antonio Oct. 26, 2016, no pet.) (mem. op.); accord Lowry, 537 S.W.3d at 620; Marin

Real Estate Partners, 373 S.W.3d at 75.

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Even assuming she presented legal arguments showing the trial court’s alleged errors—

which she did not—her brief did not include a single citation to the record. Contra TEX. R. APP.

P. 38.1(d),(g),(i) (requiring appropriate citations to the record); Keyes Helium Co. v. Regency Gas

Servs., L.P., 393 S.W.3d 858, 861 (Tex. App.—Dallas 2012, no pet.) (“Failure to cite to relevant

portions of the record waives appellate review.”); Stephens v. Dolcefino, 126 S.W.3d 120, 130

(Tex. App.—Houston [1st Dist.] 2003, no pet.) (concluding that appellants waived certain issues

“for lack of adequate briefing” because of “no citation to any authority”).

C. Pro Se Litigant

We recognize that Leta is not an attorney and is representing herself in this appeal.

However, except in some circumstances not applicable here, a pro se litigant must comply with

the Texas Rules of Appellate Procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005)

(reiterating that “pro se litigants are not exempt from the rules of procedure”); Kindle v. United

Servs. Auto. Ass’n, 357 S.W.3d 377, 380 (Tex. App.—Texarkana 2011, pet. denied) (same); see

also Briggs v. Bank of Am., N.A., No. 04-16-00087-CV, 2017 WL 685764, at *2 (Tex. App.—San

Antonio Feb. 22, 2017, no pet.) (mem. op.) (same).

“There cannot be two sets of procedural rules, one for litigants with counsel and the other

for litigants representing themselves. Litigants who represent themselves must comply with the

applicable procedural rules, or else they would be given an unfair advantage over litigants

represented by counsel.” Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978);

Briggs, 2017 WL 685764, at *2; see also Wheeler, 157 S.W.3d at 444.

CONCLUSION

Leta Davis-Newman’s brief was required to identify the trial court’s alleged errors and

present a “clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” See TEX. R. APP. P. 38.1(i); Swinnea, 318 S.W.3d at 880; Mansfield -4- 04-17-00209-CV

State Bank, 573 S.W.2d at 184–85. Because her brief does not provide appropriate citations to the

record and does not provide clear and concise arguments to support the issues she attempts to raise,

her brief does not present anything for appellate review. See Lowry, 537 S.W.3d at 620; Marin

Real Estate Partners, 373 S.W.3d at 75. Accordingly, we affirm the trial court’s judgment.

Patricia O. Alvarez, Justice

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