Opinion
No. 08-04-00193-CV.
December 21, 2006.
Appeal from the County Civil Court at Law No. 3 of Harris County, Texas (TC# 779,892).
Before CHEW, C.J., McCLURE, J., and BARAJAS, C.J. (Ret.)
BARAJAS, C.J. (Ret.) (Sitting by Assignment)
OPINION
This is an appeal from a judgment granted in favor of Laguna Townhomes Community Association of Houston, Inc., ("Laguna") for breach of a Rule11 agreement entered into by the parties. On appeal, R.K. Dingra, Trustee ("Appellant") agues: (1) the trial court erred in entering judgment on his counterclaim; (2) the trial court erred in granting judgment against him in his individual capacity; (3) the judgment and the trial court's findings of fact and conclusions of law contradict the evidence presented at trial; (4) the Rule 11 agreement entered into by the parties is unenforceable; and (5) an unexecuted settlement agreement is unenforceable. We affirm.
Appellant, a physician with a private practice located in Houston, Texas, was, at the time of trial, owner of a housing unit in Laguna Townhomes. According to a property manager for Laguna, in the two years he had been employed as property manager, Appellant made only one payment for monthly maintenance fees. As a result of Appellant's failure to pay, Laguna brought an action against Appellant to recover the overdue fees and assessments. In response, Appellant filed an answer and asserted various counterclaims against Laguna. Laguna subsequently moved for summary judgment and the trial court granted judgment in favor of Laguna. Appellant moved for a new trial and the trial court granted his request.
At some point, Appellant and Laguna agreed to settle the matter and both parties executed a Rule 11 agreement which was filed of record. According to the agreement, Appellant was to pay $6,500 in settlement of all claims. As a result of Appellant's failure to abide by the terms of the settlement agreement, specifically Appellant's failure to pay the agreed sums, Laguna filed an amended complaint alleging Appellant had breached the terms of the Rule 11 agreement.
Appellant appeared pro se in the trial court. On the day of trial, the parties agreed to waive a jury trial and proceed on the Rule 11 agreement and the trial court dismissed the jury. A bench trial was held and the trial court entered judgment in favor of Laguna for approximately $9,000 in damages, unpaid assessments, and attorney's fees. The trial court also ordered the lien on Appellant's property foreclosed and ordered the property be sold in satisfaction of the judgment. In addition, the trial court entered a take-nothing judgment on Appellant's counterclaim. Appellant timely moved for new trial and filed his notice of appeal. In addition to appearing pro se in the trial court, Appellant submitted his brief pro se in this Court.
As a preliminary issue, we must note that when a party appears pro se, that party is held to the same standards as a licensed attorney and must comply with all applicable laws and rules of procedure. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.). If pro se litigants were not required to comply with applicable rules of procedure, they would be given an unfair advantage over those parties represented by counsel. Greenstreet v. Heiskell, 940 S.W.2d 831, 835 (Tex.App.-Amarillo 1997, no writ). Accordingly, no allowance is made because a litigant is not an attorney. Foster v. Williams, 74 S.W.3d 200, 202 (Tex.App.-Texarkana 2002, pet. denied).
In Issue One, Appellant argues he waived his right to a jury trial on the Rule 11 agreement only and did not waive his right to a jury trial as to his "Counter and Cross Claims." Specifically, the bulk of Appellant's argument states that he did not "waive his right to a Jury Trial as to any other aspects of this case. . . . As a result, this Judgment is not final as to any of the other pleaded claims a part of this case." [Emphasis in original]. In addition to the argument contained in his original brief, Appellant submitted a "reply brief." In his reply brief, Appellant argues the trial court denied his right to a jury trial on his counterclaims but includes cites to the record and legal authority for his contention.
Issue One in Appellant's original submission, Issue Five in his "reply brief."
Appellant filed his brief on January 17, 2006. Laguna did not file a response. On July 19, 2006, Appellant filed a "reply brief" without seeking leave of court. Appellant's "reply brief" significantly expanded his arguments and analysis and presented legal authority for his issues. In addition, the "reply brief" raised new and distinct issues although couched in terms of"supplementing" Appellant's earlier brief. In the interest of justice and to the extent Appellant's"reply brief" merely supplements the issues raised in his original brief with argument and authority, we will consider it. See Tex.R.App.P. 38.7; Heritage Resources, Inc. v. Hill, 104S.W.3d 612, 619 (Tex.App.-El Paso 2003, no pet.). However, to the extent Appellant's "reply brief" raises new claims or extends beyond the scope of the issues presented in his original brief, we will not consider it. See Tex.R.App.P. 38.7; Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998).
At trial, Appellant presented testimony from his witness in an admitted attempt to prove up damages. Appellant candidly admits in his "reply brief" that the testimony of his witness supported his counterclaim and "Laguna raised no objection to the presentation of Dr. Dhingra's counterclaim." Appellant directs our attention to a case in which the trial court withdrew a case from the jury docket on its own initiative, but presents no other authority for his proposition. See Bank of Houston v. White, 737 S.W.2d 387, 388 (Tex.App.-Houston [14th Dist.] 1987, orig. proceeding).
On the day of trial, both parties agreed to limit the issues to the subject Rule 11 agreement. However, Appellant spent a significant amount of time attempting to establish damages on his counterclaim through his sole witness, David B. Scheffler. Through cross-examination of Appellant's witness, counsel for Laguna apparently attempted to show that Appellant incurred no damages as a result of any action by Laguna. Although Appellant voluntarily raised his counterclaim at trial, he argues he was denied his right to a jury trial when the trial court entered a take-nothing judgment. When evidence of a pleaded or unpleaded issue is presented without objection, the doctrine of trial by consent is raised. See e.g., Libhart v. Copeland, 949 S.W.2d 783, 797 (Tex.App.-Waco 1997, no writ). Here, Appellant freely admits that he voluntarily raised his counterclaim at trial despite the agreement to limit the issues to the subject Rule 11 agreement. Issue One is overruled.
In Issue Two, under the heading "DEFENDANT WRONGLY IDENTIFIED," Appellant argues there is no evidence which "identifies the Defendant as `Rakesh Kumar Dhingra' and/or as R.K. Dhingra Trustee AKA Rakesh Kumar Dhingra." Further, Appellant argues the trial court's findings of fact and conclusions of law as well as the final judgment "are not valid because it purports to be a judgment against a person who is not even a party to the lawsuit in the capacities set out in the judgment." In his "reply brief," Appellant significantly expands his argument and first raises the applicability of certain provisions of the Texas Trust Code.
Issue Two in Appellant's original submission, Issue Four in his "reply brief."
Appellant also argues in his "reply brief" that the judgment "states that it is against `R.K. Dhingra individually, a/k/a Rakesh Kumar Dhingra.' There is no evidence in the record that `R.K.' stands for `Rakesh Kumar.'" According to Appellant, the trial court has no authority to "add `a/k/a' to the name `R.K. Dhingra' in the judgment . . ." when there is no evidence to indicate that R.K. stands for Rakesh Kumar. Appellant presents no legal authority for his claim. Additionally, Appellant did not raise this issue in the trial court and may not do so for the first time on appeal. See Tex.R.App.P. 33.1(a). Further, Appellant did not present this issue in his original submission. See Johnson, 985 S.W.2d at 65. Accordingly, we will not consider it.
At trial, Laguna requested a trial amendment in order to substitute Appellant in his individual capacity based on his lack of knowledge or unwillingness to testify about his role as trustee. The trial court granted Laguna's request and Appellant did not object. The trial court ultimately granted judgment against Appellant in his individual capacity. Any complaint that Appellant was not liable in his individual capacity should have first been presented to the trial court. See TEX.R.APP.P. 33.1(a). Issue Two is overruled.
In Appellant's "reply brief," he argues error was preserved when the trial court granted Laguna's requested amendment. We disagree. See Tex.R.App.P. 33.1(a).
In Issue Three, Appellant's entire argument consists of "[t]he Defendant's Requests for Admission and other evidence were introduced at trial as evidence. However, the Findings of Fact and Conclusions of Law as well as the Judgment in this case are both in direct contradiction to the admissions made by the Plaintiff. (And other Evidence on Record)."
Issue Three in Appellant's original submission and "reply brief."
Pursuant to the Rules of Appellate Procedure, Appellant's brief must contain a clear and accurate statement of the arguments made in the body of the brief with appropriate citations to authorities and to the record. TEX.R.APP.P. 38.1(h). Rule 38 requires Appellant to provide this Court with such discussion of the facts and the authorities relied upon as may be requisite to maintain his point at issue. Sweed, 195 S.W.3d at 786. Brief, conclusory statements, unsupported by argument or citation to legal authority, are insufficient to comply with these requirements and present nothing for this Court to review. See id.
In addition, Appellant argues in his "reply brief" that there was no evidence to support an award of damages. Although Appellant presents this expanded argument as merely a supplement, he never challenged the award of damages in his original submission. Because Appellant has ventured outside the scope of the argument presented in his original submission, we will not consider the issue as presented in his "reply brief." See TEX.R.APP.P. 38.7; Johnson, 985 S.W.2d at 65. Issue Three is overruled.
In Issue Four, Appellant argues the Rule 11 agreement was not enforceable because he attempted to make changes to the agreement by way of an addendum. By the express terms of the Rule 11 agreement, "[t]he addition or change of any of the above terms shall be deemed a rejection of the proposed Agreement." According to Appellant, he signed the Rule 11 agreement subject to additional terms and conditions, therefore, he rejected the offer of Appellant and never entered into an enforceable agreement.
Issue Four in Appellant's original brief, Issue Two in his "reply brief."
After reviewing the record it is not clear when the "addendum" was prepared. As evidence at trial, Appellant presented a fully-executed copy of the Rule 11 agreement but his copy lacked a file-stamp by the clerk. Appellant also presented a facsimile cover-sheet with a notation for the court clerk to file as part of the record. Attached to the file-stamped cover-sheet is a hand-written document titled "addendum." The "addendum" was filed of record two days after the Rule 11 agreement was signed and the day after the Rule 11 agreement was filed of record. Although the hand-written document is dated the same day as the Rule 11 agreement, a copy was not faxed to Laguna until approximately eight days after the Rule 11 agreement was executed by both parties, according to the date on the cover-page of the facsimile sent by Appellant.
Appellant represents in his "reply brief" that his copy of the Rule 11 agreement was the one actually filed with the trial court even though it lacked a file-stamp.
On the other hand, Laguna presented the trial court with a copy of the Rule 11 agreement which was file-stamped by the clerk. Laguna's copy of the Rule 11 agreement did not include the alleged "addendum." Here, we are simply unable to deduce from the record the specific circumstances surrounding execution of the subject Rule 11 agreement or the "addendum." It is unclear whether the "addendum" was created prior to, contemporaneous with, or subsequent to the execution of the Rule 11 agreement. Further, we are unable to determine whether the "addendum" was filed of record with the Rule 11 agreement or if Appellant attempted to file the "addendum" after the Rule 11 agreement was executed by both parties and filed of record.
Although Appellant objected to the introduction of Laguna's copy of the Rule 11 agreement as "incomplete," the trial court overruled his objection. The only evidence in the record concerning the "addendum" presented by Appellant was his brief testimony indicating he signed the agreement "subject to other terms and conditions." Directly contradicting Appellant's testimony, counsel for Laguna testified that the Rule 11 agreement consisted of a "one-page piece of paper . . . represented by Plaintiff's Exhibit No. 1." In a bench trial, it is the duty of the trial court as the finder of fact to pass on the credibility of the witnesses and on the weight to be given testimony and it can either reject or accept the testimony of any witness, in whole or in part. See e.g., Central Forest S/C Partners, Ltd. v. Mundo-Mundo, Inc., 184 S.W.3d 296, 302 (Tex.App.-Dallas 2005, no pet.).
Appellant also makes the assertion that Laguna did not fulfill all conditions precedent by delivering a copy of the proposed settlement agreement prior to the deadline indicated in the Rule 11 agreement. However, Appellant did not present this issue to the trial court. See TEX.R.APP.P. 33.1(a). In Appellant's "reply brief," he claims error was preserved when he testified under oath that he did not receive the documents. Assuming, arguendo, that merely presenting controverting evidence somehow preserves error, counsel for Laguna testified that he provided Appellant with the settlement documents by the date indicated in the Rule 11 agreement. Contradicting that testimony, Appellant testified that he did not receive the documents. Again, the trial court was responsible for weighing the credibility of the witnesses and determining the weight to be given their testimony. See e.g., Central Forest S/C Partners, Ltd., 184 S.W.3d at 302. Ultimately, the trial court was free to reject the testimony of Appellant in its entirety. See id.
As a sub-issue, Appellant also argues that "neither R.K. Dhingra, individually nor Rakesh Kumar Dhingra, individually at any time executed subject Rule 11 Agreement made the basis of the Judgment" and thus, the agreement is unenforceable as to R.K. Dhingra or Rakesh Kumar Dhingra. Appellant did not raise his complaint in the trial court. See TEX.R.APP.P. 33.1(a). Further, Appellant presents no discussion of the facts or citation to the authorities relied upon and thus, presents nothing for our review. Sweed, 195 S.W.3d at 786. Issue Four is overruled.
In Issue Five, Appellant argues the settlement agreement was not enforceable because it was never executed by either party as required by the Rule 11 agreement nor was the settlement agreement approved by the court as required by the Rule 11 agreement. Again, Appellant presents no authority or analysis for his contention and thus presents nothing for our review. See Sweed, 195 S.W.3d at 786. Regardless, the trial court entered judgment based on Laguna's amended complaint alleging breach of the Rule 11 agreement. The Rule 11 agreement appears to be "`complete within itself in every material detail, and . . . contains all of the essential elements of the agreement. . . .'" See Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Specifically, the Rule 11 agreement indicates the amount Appellant was required to pay Laguna by a date certain in settlement of all claims, that all claims would be released by execution of a subsequent settlement agreement and mutual release, and all claims would be non-suited with prejudice after execution of the settlement agreement. The settlement agreement drafted by Laguna was never at issue. Issue Five is overruled.
Appellant's "reply brief" did not address this issue.
Accordingly, we affirm the trial court's judgment.