Moore, Elbert v. Sunnyvale Limited Partnership

• Court: Court of Appeals of Texas
• Decided: July 11, 2013
• Docket: 05-12-00602-CV
• Status: Published

Opinion

AFFIRM; and Opinion Filed July 11, 2013.

In The Qtourt of Appcah *iffl IOIIId Of XZL0 LI! OaUno

No, 05-12-00602-CV

ELBERT MOORE, Appellant

V.

SUNNYVALE LIMITED PARTNERSHIP, SUPERIOR DYNAMICS, INC., AND JOHN W. COLLINS 4 Appellees

On Appeal from the 116th judicial District Court Dallas County, Texas Trial Court Cause No. 10-06561

MEMORANDUM OPINION Before Chief Justice Wright t and Justices Lang-Miers and Fillmore Opinion by Justice Lang-Miers

Appellant Elbert Moore 2 appeals the trial court’s judgment against him quieting title,

enjoining trespass to real property, and concluding Moore’s actions constituted a private

nuisance. Because all dispositive issues are settled in law, we issue this memorandum opinion.

TEX. R. APP. P. 47.2(a), 47.4. We affirm.

Due to the retirement of the Honorable Mary Murphy from this Court on June 7. 2013, Chief Justice Carolyn Wright participated in the issuance of this Memorandum Opinion. See TEX. R. App. P.41.1(a).

2 Although Moore’s brief lists “Elbert Moore, The New Testament Church of Christ, Inc. (formerly known as Sunnyvale Church of Christ of Dallas, Texas Inc.)” as appellants, only Elbert Moore filed a notice of appeal and, as a result, is the sole appellant before us, See TEX. R. App. P. 25.1(c), (d)(5). Separately, Sunnyvale Church of Christ of Dallas, Texas, Inc. intervened in the suit, but no one appeared on its behalf at trial. BACKGROUND

Appellees Sunnyvale Limited Partnership, Superior Dynamics, Inc, and John W. Collins

sued Moore to quiet title and enjoin trespass to real property and for private nuisance. After a

trial to the court in which Moore appeared pro se, the court made findings of fact and

conclusions of law, and subsequently issued a final judgment that reflected the findings and

conclusions.

The trial court found, in relevant part, that (I) Sunnyvale Limited Partnership purchased

real property and improvements located at 4759 Sunnyvale Street, Dallas, Texas, from

Sunnyvale Church of Christ of Dallas, Texas, lnc, (2) Sunnyvale Limited Partnership owned the

property and had owned the property continuously since the Church transferred the property to

Sunnyvale Limited Partnership by a special warranty deed on April 13, 20O0, (3) Moore was

president and minister of the Church and his signature was on the special warranty deed

transferring the property and was notarized, (4) at or near the time of the property conveyance,

Sunnyvale Limited Partnership executed an assumption agreement to assume payment of the

balance owed on bonds between the Church and Colonial Trust 4 Company, (5) after the Church

conveyed the property to Sunnyvale Limited Partnership, Moore began filing documents in the

county clerk’s office, including four warranty deeds filed between 2002 and 2010, that purported

to create encumbrances upon or interests in the property and clouded title to the property,

(6) these documents constituted deeds from a divested interest holder and were invalid, (7) given

Moore’s conduct in filing the improper deeds and going onto the property without the current

The trial court also found that the original conveyance of the property inadvertently included portions of two lots of land and that Sunnyvale Church of Christ of Dallas, Texas, Inc. and Sunnyvale Limited Partnership amended the purchase and sale agreement to carve out those portions from the conveyance.

The trial court found that appellees defaulted on the assumption agreement, Colonial initiated foreclosure proceedings and a lawsuit, the parties resolved the lawsuit with a compromise and settlement agreement, foreclosure was halted, and the parties entered an agreed final judgment on January 7, 2002, disposing of the lawsuit.

—2— owner’s permission, imminent and irreparable harm would befall appellees, for which there

would be no adequate remedy at law, if Moore was not enjoined from those activities.

The trial court concluded that (1) Moore’s actions improperly clouded title to the

property because neither Moore nor the Church were “the proper owner of the subject

propertyl,j” (2) Moore’s actions “constituteld] trespass and private nuisance” and affected or

impaired appellees’ rights in the property, (3) deeds that Moore filed between 2002 and 2010

were “filed by a divested interest holder” and affected or impaired appellees’ title in the property

and were “invalid and void[,j” and (4) Moore was permanently enjoined from taking certain

actions, including entering the premises, changing locks on the building, filing any documents in

the public record that encumbered, contested, or interfered with appellees’ ownership of the

property, and taking any other action that “unlawfully interferes” with appellees’ rights of title

in, entry to, or possession or control of the property.

ANALYSIS

Moore represents himself on appeal. Although we liberally construe pro se pleadings and

briefs, a pro se litigant is required to follow the same rules and laws as litigants represented by a

licensed attorney. See Mansfield State Bank v. Cohn, 573 S,W.2d 181, 1 8485 (Tex. 1978);

Drum v. Calhoun, 299 S.W.3d 360, 364 (Tex. App.—Dallas 2009, pet. denied). Otherwise a pro

se litigant would have an unfair advantage over a litigant represented by a licensed attorney.

Mansfield State Bank, 573 S.W.2d at 185; Drum, 299 S.W.3d at 364.

The rules of appellate procedure require that an appellant’s brief “contain a clear and

concise argument for the contentions made, with appropriate citations to authorities and to the

record.” TEx. R. App. P. 38.1(i). And this Court does not search the record for facts that favor a

party’s position, identify possible trial court error, or do legal research that might support a

party’s contentions. Boiling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex.

—3— App.—Dallas 2(310, no pet.). In addition, the record must support statements in a brief or they

will not be considered on appeal. In re A.WP., 200 S.W.3d 242, 244 (Tex, App.—Dallas 2006,

no pet.).

Moore presents thirtyone issues on 5 appeal. As a threshold matter, we must determine

whether Moore has preserved his complaints regarding these issues for appellate review. See In

re M.S., 115 S,W,3d 534, 547 (Tex, 2003) (noting “error preservation in the trial court . . . is a

threshold to appellate review”); Tate v. Andrews, 372 S.W,3d 751, 754 (Tex. App.—Dallas

2012, no pet.). To preserve a complaint for appellate review, a party generally must present the

complaint to the trial court by timely request, motion, or objection, stating the specific grounds,

and obtain a ruling. Shaw v. Cnty. of Dallas, 251 S.W.3d 165, 174 (Tex. App.—Dallas 2008,

pet. denied) (citing Tnx. R. App. P. 33.1(a)). “If the matter is not presented to the trial court, the

trial court has no opportunity to rule on the issue or to coaTect its ruling if it is made in error.” In

re R.J.P., 391 S.W.3d 677, 678 (Tex. App.—Dallas 2013, no pet.) (quoting In re Marriage of

Lendman, 170 S.W.3d 894, 898 (Tex. App.—Texarkana 2005, no pet.)); see also Powell v.

Powell, 604 S.W.2d 491, 493 (Tex. Civ. App.—Dallas 1980, no writ) (“The orderly

administration of justice requires that issues and objections be raised in the trial court so that

justice may be done there rather than to permit a litigant to wait until after the trial court has

acted adversely and then complain for the first time on appeal.”). In addition, to preserve error

for appellate review, “a party’s argument on appeal must comport with its argument in the trial

court.” Knapp v. Wilson N. Jones Mern’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009,

Appellees did not file a brief in this Court. Moores thiii--one issues can he summari,ed to inc1ude:

(1) whether the trial court abused its (liscretion by denying Moore and the (‘liurch ownership ol the property “taken by \ppellee Collins by fraud. Irgery. conspiracy. and deception” and whether the Church has “legal ownership of the property “dtie 1(3 the illegal iraud. forgery, and conspiracy:

(2) whether the signatures of Moore and a church board member on documents were forgeries and whether the “forged documents should be “set aside, null, and void”: 1

(3) whether “newly discovered evidence is available”—which Moore submits as exhibits to his appellate brief—for this Court “to ascertain the authenticity of the purported documents and perjured testimony” offered by Collins and his attorneys;

(4) whether the police and district attorney’s office should have prosecuted “the forgery, fraud, deception, and conspiracy’ as “criminal acts”:

(5) whether appellees “made an unauthorized assumption and exercise of the right of ownership over the property “by conversion:

(6) whether “Superior Dynamics, Inc.: Sunnyvale Limited Partnership, Inc.: and The Collins Company” are “defunct, cancelled,” and “Injo longer authorized to operate as a business in the State of Texas” and whether this precluded or barred appellees “from conducting business transactions”;

(7) whether appellees’ “purported and illegal business entities” “in a ‘concerted effort” took the property and “illegally deprived” Moore and the Church of the property for over thirteen years;

(8) whether “the various legal documents introduced into evidence” by appellees’ attorneys “were false and misrepresentationlsj of facts” and were “forged, fraudulent, and not authentic” and whether “the ownership purported by Appellees/Plaintiffs should be voided due to the[sej illegal forged, fraudulent, and deceptive documents”;

Moore states various of his issues in terms of claims by “Appellants,” meaning Moore and the Church. Because Moore is the only appellant before us on this appeal, the issues as presented here refer solely to Moore as the appellant, unless the context requires inclusion of both Moore and the Church.

Moore refers to both the claimed forged documents that he submits as exhibits to his appellate brief and the claimed “forged. fraudulent, and deceptive documents produced by Appellees/Plaintiffs.” Two of appellees’ exhibits admitted at trial—the special warranty deed and the assumption agreement—-are exhibits submitted with Moore’s appellate brief. Some of Noore’s exhibits admitted at trial are also exhibits submitted with Moore’s appellate brief: (I) an engagement letter and additional letter from the law firm that represented the Church in the sale of the property. (2) the written consent of the board of trustees of the Church consenting to the sale of the property, and 13) a letter from Colonial Tmst Company’s attorney concerning the transaction and a letter froni Moore to Colonial’s attorney. Moore also submits Collins’s affidavit that was attached to appellees’ original petition as an exhibit to his appellate brief. The numerous other documents Moore submits as exhibits to his appellate brief were not admitted at trial.

—5— () whether (ollins “purported to be a licensed attorney in the Stale 0! Texas” and real estate law prolessor in 1999;

LU) whether the property (including the lots previously attached to the property) was entitled to tax exempt status from fiscal years I 999 through 29j 2 because Collins was not the legal owner;

(1!) whether Collins “and his illegal business entities profited from taking Appellant’s Church Real Property” when they conducted business transactions, including filing property insurance claims on policies that Moore and the Church had in effect;

(12) whether the trial court proceedings, including Moore’s “courtroom appearance without legal counsell .1” the “taking ol real estate properlyl .1” and “tina1 order procedures” violated Moore’s “Constitutional Rights and Guarantees”:

(13) whether the notary public “financially benefited” from her negligence in not verifying the signatures on the transaction documents or verifying the honesty and truthfulness of Collins and William Scott Wyatt, the attorney who represented the Church in the transaction, and whether the notary “negligently allowed” Collins and Wyatt to use her notary seal “in an illegal manner” to her financial benefit;

(14) whether Collins and Wyatt “conspired together to illegally cheat” Moore out of the property “by knowingly notarizing forgeries”:

(15) whether the Church property, the “illegal transactions by Appelleesj,I” the loss of use of and business revenue from the property, “the illegal confiscation and the illegal ‘locking-down’ and locking out of the rightful owner[,j” and “the equipment” have certain estimated values;

(16) whether Moore “has suffered irreparable injury, harm, and damages[,i” including economic damages, and whether Moore is entitled to monetary damages for the illegal taking of the property and damages for mental anguish: and

(17) whether Moore is entitled to attorney’s fees and reimbursement of court costs.

With respect to Moore’s first summarized argument that the trial court abused its

discretion by denying Moore and the Church ownership of the property because appellees took

the property “by fraud, forgery, conspiracy, and deception[,j” Moore does not complain of a

specific error by the trial court, but rather that the court made an incorrect determination.

-6- I lowever. !\Iuure dues alot state his arument as a chal lenee to the sufficiency of the evidence.

II \ R \ I P P 33 1(d) ( sI him. iii t in i nonjui ‘ ise i Lompl 11111 1 II (1In th. Lgal oi

factual insufficiency of the evidence may be made for the first time on appeal). lie does not state

the standard of review for a sufficiency of the evidence complaint, does not cite any legal

authority addressing or cite the record to support a sufficiency complaint, and does not analyze

how the evidence iii the case was insufficient to support the judgment .5cc Id. 3X. 1(i). As a

result, he has not raised an issue challenging the sufficiency of the evidence and has not

preserved this isue for appeal .St’e 1(1. 33.1: Gamer i’.Alpha Testing. Inc.. No. 05-10-01228—

CV, 2012 WL 2584836, at *3 (Tex. App.——DalIas July 5, 2012, no pet.) (mem, op.). We resolve

this issue against Moore.

As to Moore’s second summarized issue that the signatures on documents were forgeries,

Moore alleged at various times while acting as his own attorney that his signature on documents

was forged. But Moore did not object to admission of the documents into evidence or to the

judge’s condition to admit two of his exhibits only after redacting the word “forgery” that Moore

had written on the documents. Further, although Moore asked Collins why Collins forged his

signature—which Collins denied—Moore did not present any evidence below establishing that

the documents were forgeries. And Moore does not present his forgery argument on appeal as a

challenge to the sufficiency of the evidence or cite the record to support his argument.

Consequently, Moore has not preserved his forgery argument for appeal. See TEX. R. APP. P.

33.1, 38.1(i): see also Morris v. Wells Farço Bank, NA, 334 S.W.3d 838, 840—48 (Tex. App.—

Dallas 2011, no pet.) (considering allegations on appeal that evidence was not legally and

factually sufficient to support finding that signature on deed was genuine and discussing

Although Moore describes the “substantial evidence standard of review” under California law, he does not present the sufficiency of the evidence standard of review under Texas law that would apply to our review of a sufficiency complaint, nor does he relate his discussion of the California “substantial evidence” standard to the issues he presents, including the first summarized issue. Rather, he includes his discussion of the California substantial evidence standard of review between two sections of his brief that discuss public takings law.

—7— evidence presented at trial concerning whether signature was genuine). We resolve Moore’s

forgery issue against him.

Moore’s third summarized issue asserts that “newly discovered evidence” that he submits

to this Court with his appellate brief “is available” to this Court to “to ascertain the authenticity

of the purported documents and perjured testimony” offered by Collins and his attorneys. A

motion for new trial is a prerequisite to a complaint on appeal “on which evidence must be heard

such as one of. . newly discovered evidencej.j” TEX, R. CIV. P. 324(b)(l); see Cruz v. Schell,

Beene & Vaughn, LLP,, No, 05.0i-0565.CV, 2012 WL 3194074, at *4 (Tex. App—Dallas

Aug. 7, 2012, pet. denied) (mem. op.) (finding error not preserved on claim of newly discovered

evidence where appellant filed motion for new trial but there was no hearing or ruling on the

motion); In re J.P.. 365 S.W3d 833, 836 (Tex. App.—Dallas 2012, no pet) (stating required

showing by movant to obtain a new trial based upon newly discovered evidence). The record

does not reflect that Moore filed a motion for new trial in the trial court. As a result, Moore has

not preserved this complaint for appeal and we resolve his third summarized issue against him.

With respect to Moore’s arguments summarized as issues four through seventeen above,

Moore raises each of these arguments for the first time on appeal. Moore did not present these

complaints “to the trial court by a timely request, objection, or motion” stating the specific

grounds and obtain a ruling. TEx. R. APP. P. 33.1(a); 9 see Shaw, 251 S.W.3d at 174; see also

Knapp, 281 S.W.3d at 170 (stating that, to preserve an argument for appeal, a party’s argument

“must comport” with its argument at trial). Nor has he complained of the sufficiency of the

evidence with respect to any of these issues. TEx. R. App. P. 33.1(d). As a result, he has not

This preservation requirement stated in mle 33.1(a) likewise applies to constitutional issues, and as a result applies to Moore’s constitutional complaint stated in summarized issue twelve. See In re L.M.J., 119 S,W.3d 707, 710—1 I (Tex. 2003); Lowe v. Jefferson Dental Clinics, No. 05-1 l-00902-CV, 2012 WL 1669824, at *2 (Tex. App—Dallas May 14,2012, no petl(mem. op.).

—8— preserved. th.s... issues .for ipt1hte• rtew. W. resolve M.&re’ s complaints as

issues. &i..r through.. e.vent en. a.gai.ns.t 1.11.ITh

CGCL1JSION

We resolve all of ore’s issues against him and. the trial court’s judgment.

ELIZABETH LANGMIERS JUSTICE

I 20602RP05

—9— 0 Qøurt nf Apiuati ififtli Jutritt nf ut Ja11uui JUDGMENT

ELBERT MOORE, Appellant On Appeal from the 116th Judicial District Court. Dallas County. Texas No. 05l200602CV V. Trial Court Cause No. l0-06561. Opinion delivered by Justice LangMiers, SUNNYVALE LIMITED PARTNERSHIP, Chief Justice Wright and Justice Fillmore SUPERIOR DYNAMICS, INC., AND participating. JOHN W. COLLINS, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellees SUNNYVALE LIMITED PARTNERSHIP, SUPERIOR DYNAMICS, INC.. AND JOHN W. COLLINS recover their costs of this appeal from appellant ELI3ERT MOORE.

Judgment entered this 11th day of July, 2013.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

-10-