Opinion
No. 01-03-00034-CV
Opinion issued July 15, 2004.
On Appeal from County Civil Court at Law No. 1, Harris County, Texas, Trial Court Cause No. 727,682.
Paul D. Scully, Houston, TX, and Scott Rothenberg, Law Offices of Scott Rothernberg, Bellaire, TX, for appellant.
Andrew P. McCormick, McCormick McNeel, L.L.P., Houston, TX, for appellee.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION
Appellant, Robert R. Long d/b/a MWT (Long), appeals from a judgment that awarded actual and punitive damages, attorney's fees, sanctions, interest, and costs to appellee, United Welding Supplies, Inc. (United). In 12 issues, Long challenges the legal and factual sufficiency of the evidence to support the jury's findings and further contends that the jury's responses to three questions are immaterial, that the award of attorney's fees, interest, and costs cannot stand, and that the trial court abused its discretion by awarding sanctions because United waived its request for sanctions, and because the trial court's conclusions are erroneous and unfounded. We affirm.
This case was submitted to this Court without oral argument on May 25, 2004. On May 25, 2004, at 3:01 p.m., after this case was submitted to the Court, appellant, Robert R. Long (Long), filed a "Pre-Submission [sic] Brief of Appellant, Robert R. Long." This brief purported to reply to the brief of appellee, United Welding Supplies, Inc. (United), filed on December 5, 2003. Long did not seek relief from this Court in presenting the brief, as authorized by the Rules of Appellate Procedure. See Tex.R.App.P. 38.6(c) (deadline for filing appellant's reply brief); 38.6(d) (modification of filing time for briefs); 38.7 (amendment or supplementation of briefs). Given this Court's mandate to construe the rules liberally, however, see id. 38.9, and because Long filed the brief after this case was submitted to the Court, the Court filed the brief as a postsubmission brief. See Tex.R.App.P. 38.9 ("Briefing Rules to be Construed Liberally"). In addition, we considered the arguments asserted in the brief, although solely to the extent that those arguments encompassed the arguments that Long raised in his principal brief, or to the extent that those arguments actually responded to United's appellee's brief.
Background
United filed this lawsuit to recover a $4,274.02 unpaid balance for welding supplies and services provided on account to Long. United sued for breach of contract and fraud and sought actual and punitive damages and attorney's fees. Long answered by sworn denial. United sought sanctions against Long during trial, but the parties agreed to defer the request until after trial concluded.
The trial court submitted the case to the jury by 10 written questions, to which Long raised only sufficiency-of-the-evidence objections. The jury's findings are as follows: (1) United and Long agreed that United would supply goods and services to Long and that Long would pay for them; (2) Long did not comply with the agreement; (3) United substantially relied to its detriment on Long's promise, and this reliance was foreseeable; (4) United performed compensable work for Long; (5) $4,274.02 would fairly and reasonably compensate United for Long's failure to comply with the agreement; (6) Long committed fraud against United by misrepresenting that he would pay United for goods and services; (7) $4,274.02 would fairly and reasonably compensate United for Long's fraud; (8) the harm to United resulted from malice by Long; (9) $20,000 was a reasonable attorney's fee for United's trial preparation, and $10,000 at each level of appellate review would be reasonable attorney's fee for an appeal; (10) $30,000 should be assessed against Long as exemplary damages.
This question was predicated on a "yes" answer to the malice question.
Following the verdict and before the trial court signed the judgment, United supplemented its pleadings to conform to the evidence submitted at trial, without opposition from Long. In accordance with the parties' agreement, United reurged its earlier motion for sanctions, but amended that motion based on Long's conduct during the trial. The trial court granted United's motion for sanctions.
The trial court rendered judgment that United "have and recover" $4,272.02 in actual damages "from ROBERT R. LONG d/b/a MWT" plus prejudgment and postjudgment interest on that sum, attorney's fees for trial, $30,000 in punitive damages, and contingent attorney's fees for appeal, and ordered that United recover all costs from Long. In addition, the judgment decreed that Long pay sanctions to United, as follows:
We note that a plaintiff may not recover exemplary damages for a breach of contract. Likewise, a plaintiff may not recover attorney's fees for a claim of fraud. The trial court's judgment awards both exemplary damages and fees and thus reflects that no election of remedies was made. Although Long objected to the trial court's judgment on this basis in his amended motion for new trial, he did not assert the matter as a basis for reversal in this Court.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that ROBERT R. LONG d/b/a MWT shall pay to UNITED WELDING SUPPLIES, INC. the sum of $45,000.00 as sanctions. The imposition of this monetary sanction results from the defendant, ROBERT R. LONG d/b/a MWT, injecting forged documents upon the Court in an attempt to avoid payment of a legal debt and then denying that the signature on the documents was his signature for the first time at trial. ( See Plaintiff's Exhibit 38.) The Court reserves the finding of whether or not this is the first instance in which the defendant, ROBERT R. LONG d/b/a MWT, has conducted himself in this manner. The Court finds that this defendant submitted other forged documents during the discovery process in this case. The Court finds that this defendant's actions defile and defy the institution of the judiciary and the administration of justice. This sanction is imposed pursuant to the Court's inherent power to sanction to protect the dignity, independence and integrity of the court system and to aid in the administration of justice. Further, the imposition of this sanction is based on Texas Rules of Civil Procedure 13, Texas Rules of Civil Procedure 215 and Texas Civil Practice and Remedies Code 10.001 et seq. and the inherent powers invested in this Court.
Legal and Factual Sufficiency Challenges
Long's issues one through four and seven through nine challenge the legal and factual sufficiency of the evidence to support the jury's findings in response to questions one through four and six through eight.
The arguments in support of Long's seven sufficiency challenges consist of less than two pages, the first page of which addresses the standard of review. These paragraphs cite four supreme court cases, but these are the only authorities that Long cites to support all seven sufficiency challenges, and Long does not explain how those authorities apply to this case.
The second page of Long's brief begins with the following preface:
At trial, counsel for United seemed determined to establish that after the transaction in question, Robert Long took improper and unethical steps to exonerate himself from liability for the debt in question. That issue was not submitted to the Jury for its consideration. Unfortunately for United, the evidence in support of United's issues that were submitted to the jury was not nearly so well-developed.
(Emphasis in original.)
Given the brevity of Long's contentions in support of his seven sufficiency challenges and the dearth of authority cited in support of those challenges, which we address below, we construed this preface broadly, in keeping with rules 38.1(e) and 38.9 of the Rules of Appellate Procedure. See Tex.R.App.P. 38.1(e) ("The statement of an issue or point will be treated as covering every subsidiary question that is fairly included."); 38.9 ("Briefing Rules to be Construed Liberally").
In construing this preface, we noted that Long identified himself in the style of his brief and throughout his brief as, "Robert R. Long," i.e., as an individual, and not as "Robert R. Long d/b/a MWT" — the entity that United sued and the entity that is bound by the judgment of the trial court. Likewise, we noted that the jury charge identified Long as "Robert R. Long," and not as "Robert R. Long d/b/a MWT." From these circumstances, and despite the lack of citation to either the record or authority and despite that Long did not preserve the complaint in the trial court by objecting specifically to the jury charge or the judgment, we discerned that the possible purpose of the preface in Long's principal brief was to assert, however cryptically, that Long cannot be personally liable for the judgment because the entity submitted to the jury was "Robert R. Long," and not "Robert R. Long d/b/a MWT." As Long clarified in his postsubmission brief, although again without citation to authority, this was indeed the purpose of the preface in Long's principal brief.
Long's postsubmission brief clearly asserts, for the first time, that "The primary issue in this case is whether Robert R. Long himself and individually committed the wrongful conduct inquired about in Jury Questions Nos. 1 through 8." (Emphasis in original.)
As stated above, the judgment of the trial court binds "Robert R. Long d/b/a MWT." Texas law has long recognized that when, as here, a judgment is rendered against an individual doing business as an unincorporated association, that judgment is binding on the individual. See Old Republic Ins. Co. v. EX-IM Servs. Corp., 920 S.W.2d 393, 396 (Tex. App.-Houston [1st Dist.] 1996, no writ); Holberg Co. v. Citizens Nat. Assurance Co., 856 S.W.2d 515, 517 (Tex. App.-Houston [1st Dist.] 1993, no writ); Tex. Rev. Civ. Stat. Ann. art. 6135 (Vernon 1970); Tex. R. Civ. P. 28. Accordingly, we reject Long's contention based on these well-settled principles. The preface of Long's brief, quoted above, is followed by a paragraph in which Long states his intent to combine all of his sufficiency challenges in a single section of the brief. He then then asserts, "Th[is] Court can parse the record from beginning to end and — based on the standards of review set forth above — find no legally or factually sufficient evidence to support the Jury's findings. . . ." Long concludes this paragraph, and his entire challenge to both the legal and factual sufficiency of the evidence to support the seven challenged jury findings, by restating those findings.
An appellant's brief "must 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(h). In challenging the jury's finding, in response to question two, that Long did not comply with his agreement with United, Long merely states, "(because the agreement never existed)." [Parentheses in original.] This conclusory parenthetical is far from sufficient to support Long's second issue, because Long provides neither authorities nor citations to the record to support his contention. We note this parenthetical, however, because it is the only specific argument that Long asserts in his challenge to the legal and factual sufficiency of the evidence to support the multiple theories of recovery reflected in the jury findings.
Although Long provides references to the clerk's record where the particular jury findings may be found, he provides no other citations to the record. See id. Further, although the seven challenged findings encompass many different theories, Long provides no citations to any authorities that govern those theories. Likewise, there is neither discussion of the law, nor its application to the facts found by the jury, nor any attempt to demonstrate why the record does not support the facts found by the jury. See id.; Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex. App.-Houston [1st Dist. 2000, no pet.); Harris County Mun. Util. Dist. No. 48 v. Mitchell, 915 S.W.2d 859, 866 (Tex. App.-Houston [1st Dist.] 1995, writ denied) (decided under predecessor rule, Tex.R.App.P. 74( l)).
When, as here, a party merely asserts a legal or factual sufficiency challenge on appeal and provides no references to the record, no citations to authority, no discussion of relevant facts, and neither analysis nor argument to explain how the law relates to the relevant facts, we decline to "parse the record from beginning to end," as Long proposes, to conduct an independent review of the record and the applicable law in order to address the sufficiency challenges. Ryan v. Abdel-Salam, 39 S.W.3d 332, 336 (Tex. App.-Houston [1st Dist.] 2001, pet. denied); Raitano v. Texas Dep't of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.-Houston [1st Dist.] 1993, writ denied) (decided under predecessor rule, Tex.R.App.P. 74(f)). Instead, faced with these circumstances, we hold that the party has "wholly failed" to brief its contentions. See Mitchell, 915 S.W.2d at 866 (decided under predecessor rule, Tex.R.App.P. 74(l)).
We acknowledge our duty to construe the briefing rules liberally, see Tex.R.App.P. 38.9; 38.1(e), and do so in construing and addressing the preface of Long's principal brief, as clarified by his postsubmission brief. Long's remaining contentions, however, are controlled by the long-settled principles that proscribe our considering issues or points of error that lack citation to authority or to the record because they present nothing for this Court to review. Ryan, 39 S.W.3d at 336; Franz, 35 S.W.3d at 755.
Having rejected Long's contention that he is not personally liable for the judgment, we further hold that Long has wholly failed to brief the remainder of his sufficiency challenges adequately and has, therefore, waived any error.
We overrule issues one through four and seven through nine.
"Immaterial" Issues
In his fifth, sixth, and tenth issues, Long contends that the jury's responses to questions four, five, nine, and 10 are immaterial and cannot support a judgment.
In response to question four, the jury found that United performed compensable work for Long. Long offers no argument in support of his fifth and has therefore waived any error. Tex.R.App.P. 38.1(h); Ryan, 39 S.W.3d at 336; Franz, 35 S.W.3d at 755.
In response to question five, the jury assessed $4,274.02 as actual damages for Long's failure to comply with his agreement with United. Long conditions his challenge to the materiality of this finding, however, on this Court's having sustained his challenge to the jury's findings in response to questions one through four.
Having overruled those challenges, we overrule issue six.
In issue 10, Long contends that the jury's findings in response to questions nine and 10 and the trial court's resulting awards of attorney's fees, exemplary damages, prejudgment and postjudgment interest, and costs of court cannot stand Here again, however, Long conditions this issue on this Court's having sustained Long's first nine issues.
Having overruled those issues, we overrule issue 10.
Sanctions
A. Background
This case involved allegations and counter-allegations by Long concerning the authenticity of documents initially produced by Long. After trial was continued from January 2001, the parties mediated the case on April 18, 2001, less than 30 days before trial. During the mediation, Long produced supplemental discovery documents. These consisted of purported communications between United and Long that tended to show that United had erroneously invoiced Long for supplies ordered by Robert R. Long d/b/a MWT. United doubted the authenticity of these documents and submitted them to a forensic document examiner.
During the pretrial conference on the day that trial began, however, Long's counsel disputed whether the documents that the forensics examiner analyzed were actually those that Long had offered as supplemental discovery at the mediation. The trial court had initially granted United's motion to secure the documents, by requiring that Long surrender them to United's counsel. Ultimately, however, the trial court became the custodian of the documents.
These documents became Plaintiff's Exhibit 38 to which the trial court referred in the portion of the judgment that awarded the $45,000 sanction.
At trial, despite the documents' having been secured with the trial court at the previous day's pretrial conference, Long again disputed whether the documents were those that he had produced in discovery and stated several times that he did not recognize the documents. The forensic document examiner who analyzed the documents Long produced in discovery explained that the documents included correspondence indicating that Long had communicated several times with United about the funds he owed and that United had, in turn, responded to Long. The examiner testified, however, that she discerned while examining the documents, in particular the age of the paper, that the correspondence Long claimed to have exchanged with United actually consisted of newly created documents. The examiner further testified that Long had used computer technology to forge the signature of United's president on the documents that purportedly originated with United. In addition, an attorney whom Long had once retained offered evidence that Long had used similar techniques, specifically, manufacturing correspondence that never existed, to avoid financial obligations to that attorney.
In support of the $45,000 award of sanctions recited in the judgment, United requested and obtained findings of fact and conclusions of law in support of the trial court's award.
B. Standard of Review
The abuse-of-discretion standard governs a trial court's award of sanctions. Koslow's v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990). Under this standard, we review the entire record. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986). In addressing factual issues, however, or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Likewise, if the trial court's decision was within the trial court's discretionary authority, we may not reverse for abuse of discretion merely because we disagree with that decision. Beaumont Bank N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). If the record shows that the trial court followed the rules and principles that governed its exercise of discretion, then we may not find an abuse of discretion. Morrow, 714 S.W.2d at 298.
C. Long's Challenges
Long's issues 11 and 12 are premised on the assertion that United knew about the documents that ultimately became Plaintiff's Exhibit 38 before trial, but did not urge its motion for sanctions until trial began. Relying on Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167, 171-72 (Tex. 1993), Long contends that United waived any right to sanctions by not urging its motion until after trial. Long ignores, however, his agreement to postpone consideration of United's motion for sanctions until after the jury reached a verdict. Long also ignores the continuation at trial of the conduct punished by the trial court's award of sanctions, when Long continued to dispute the authenticity of the documents that constituted Plaintiff's Exhibit 38, despite those documents' having been entrusted to the custody of the trial court.
Although Long's issue 11 asserts that the trial court's conclusions are "erroneous and unfounded," here again, he does not substantiate these contentions with argument and citations to authorities or to the record. Accordingly, he has waived these contentions for failure to brief them adequately. Tex.R.App.P. 38.1(h); Ryan, 39 S.W.3d at 336; Franz, 35 S.W.3d at 755.
We conclude that the trial court did not abuse its discretion in awarding sanctions to United and overrule Long's issues 11 and 12.
Conclusion
We affirm the judgment of the trial court.