Paul Clarence Bailey v. the Lake of Preston Vineyards Homeowners Association

• Court: Court of Appeals of Texas
• Decided: January 19, 2015
• Docket: 05-13-00146-CV
• Status: Published

Opinion

Affirmed and Opinion Filed January 15, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00146-CV

PAUL CLARENCE BAILEY, Appellant V. THE LAKES OF PRESTON VINEYARDS HOMEOWNERS ASSOCIATION, Appellee

On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-00927-2012

MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Francis Paul Clarence Bailey appeals the trial court’s order granting The Lakes of Preston

Vineyards Homeowners Association’s motion for summary judgment and awarding the HOA

damages and attorney’s fees, foreclosing the assessment lien, and ordering the property sold.

Appellant, who is representing himself pro se, complains on appeal that he was not served with

court documents, the trial judge was not impartial, he is protected from foreclosure under the

homestead laws, and the HOA did not act in good faith.

After appellant filed his brief with this Court, we notified him that it did not satisfy the

requirements of rule 38 of the Texas Rules of Appellate Procedure. Among other things, we

noted the brief failed to provide any citations to the record. In response to our letter, appellant filed an amended brief correcting many of the deficiencies, but he still failed to provide any

citations to the record.

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, 184–85 (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 licensed counsel. Mansfield State Bank, 573 S.W.2d at

185; Drum, 299 S.W.3d at 364.

Subsections (d), (g), and (i) of rule 38.1 require an appellant’s brief to provide record

references to the statement of the case, statement of facts, and argument. TEX. R. APP. P. 38.1(d),

(g), & (i). Appellant has not done so. Instead, when he does reference documents, he directs us

to exhibits attached to his brief. Except for the trial court’s order, these exhibits are not part of

the appellate record. It is well established that documents attached to an appellate brief which

are not part of the record may generally not be considered by the appellate court. See Perry v.

Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas 1987, no writ) (op. on

reh’g). Further, an appendix is not a substitute for a clerk’s record or reporter’s record nor are

citations to the appendix a substitute for citations to the record. In re L.M.M., No. 05-07-00789-

CV, 2008 WL 2454680, at *1 (Tex. App.—Dallas June 19, 2008, pet. denied) (mem. op.). It is

not this Court’s role to 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. Bolling v. Farmers

Branch Indep. Sch. Dist., 315 S.W.3d 894, 895 (Tex. App. Dallas 2010, no pet.). Because

appellant has not provided any record citations, despite being given an opportunity to correct this

deficiency, we conclude nothing is preserved for review. Id.

–2– But even if appellant had provided record citations, he has not shown reversible error.

Appellant first complains he was not served with “demand letters” and “court documents”

because they were mailed to his home address and prison officials violated his civil rights by

“tampering” with his mail. Appellant does not identify the “court documents,” but we note he

was served with the lawsuit and filed an answer; he also filed a response to the motion for

summary judgment (although he did not respond to the amended motion for summary judgment).

Moreover, assuming for purposes of this opinion the truth of his assertion that he has been

incarcerated since 2012, nothing in the record shows appellant notified the court or opposing

counsel of his new address. In fact, the record shows during the course of the lawsuit, appellant

filed several pleadings and used his former home address. The latest document, a request for a

trial setting, was filed with the trial court in January 2013. To the extent he argues the trial judge

was not impartial because he knew but concealed the fact appellant was in prison and allowed

documents to be sent to the wrong address, nothing in the record supports his claim. As for his

assertion that the prison has violated his civil rights by tampering with his mail, it is unsupported

in the record. Moreover, appellant does not explain how this lawsuit is the proper forum for such

a complaint.

Appellant next asserts his homestead is constitutionally protected against all debts,

including HOA assessment fees, except purchase money, taxes, or work and materials used in

constructing improvements on it. Appellant did not raise this issue in his response to the HOA’s

motion for summary judgment or amended motion for summary judgment. On summary

judgment, any issue not expressly presented to the trial court in a written motion or response may

not be raised as grounds for reversal on appeal. In re A.L.H.C., 49 S.W.3d 911, 915 (Tex.

App.—Dallas 2001, pet. denied). Thus, this issue is waived. Regardless, appellant generally

relies on the dissent in Inwood North Homeowners’ Association Inc. v. Harris, 736 S.W.2d 632

–3– (Tex. 1987) to support his position. A dissent, however, is just that–a dissent. The majority in

Inwood concluded the homeowners’ association was entitled to foreclose on the homesteads of

owners who had not paid their homeowners’ assessments because the property owners had notice

when purchasing the property that a lien attached to the land. 736 S.W.2d at 637. As an

intermediate appellate court, we are bound by the pronouncements of the supreme court on the

law. Diggs v. Bales, 667 S.W.2d 916, 918 (Tex. App.—Dallas 1984, writ ref’d n.r.e.).

Appellant has not made any attempt to distinguish the facts in Inwood from those in this case.

We conclude this issue is without merit.

Finally, appellant argues the HOA has acted in bad faith by refusing to work with him to

resolve the issue, by trying to deprive him of rental income by making “slanderous statements to

prospective tenants,” and by failing to serve him with “proper notice” in a “deliberate attempt to

exploit procedural issues and to secure a judgment by default.” We have previously addressed

appellant’s “notice” issue; as to the other issues, appellant does not explain how these would

entitle him to a reversal of the judgment. Regardless, nothing in the record supports the

complaints. To the extent he relies on affidavits attached to his brief and not presented to the

trial court, we do not consider them. See Perry, 741 S.W.2d at 534. Appellant’s complaints are

without merit.

We affirm the trial court’s order.

130146F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE

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

PAUL CLARENCE BAILEY, Appellant On Appeal from the 366th Judicial District Court, Collin County, Texas No. 05-13-00146-CV V. Trial Court Cause No. 366-00927-2012. Opinion delivered by Justice Francis; THE LAKES OF PRESTON VINEYARDS Justices Evans and Stoddart participating. HOMEOWNERS ASSOCIATION, Appellee

In accordance with this Court’s opinion of this date, the order of the trial court is AFFIRMED.

It is ORDERED that appellee The Lakes of Preston Vineyards Homeowners Association recover its costs of this appeal from appellant Paul Clarence Bailey.

Judgment entered January 15, 2015.

–5–