Opinion
No. 05-16-00522-CV
06-07-2017
KATHY WILBURN AND KORWIN WILBURN, Appellants v. SUSAN DACUS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas
Trial Court Cause No. 416-02347-2013
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Whitehill
After a jury trial concerning injuries allegedly suffered after a rear end collision between Kathy and Korwin Wilburn (together Appellants), on one hand, and Susan Dacus, on the other, the trial court entered a take-nothing judgment for Dacus. Appellants, appearing pro se, in what we construe to be ten issues argue generally that the trial court erred by (i) conducting the trial without all plaintiffs present, and (ii) conducting the trial without all witnesses present, (iii) not considering various pieces of evidence, and (iv) not recognizing that the case should have settled earlier.
Appellants' brief also a states that the "trails [sic] court's judgment is not supported by factually sufficient or enough evidence." To the extent that Appellant intended to raise a factual sufficiency point, there is no argument, authority, or citation to the record. Therefore, the argument is forfeited for inadequate briefing. See TEX. R. APP. P. 33.1.
We conclude that Appellants' arguments are forfeited because they are inadequately briefed. Moreover, Appellants would not prevail even if there were no briefing waiver because the alleged errors were not preserved in the trial court. We thus affirm the trial court's judgment.
I. Background
The facts are well known to the parties, so we need not discuss them in detail here. Instead, we focus only on those facts pertinent to the issues presented.
Appellants and Lawrence Wilburn sued Dacus for personal injuries that allegedly resulted when Dacus rear-ended Appellants' van. Lawrence's claim was severed into a separate cause number and tried separately because she did not appear for the trial setting.
Appellants were represented by counsel at trial. Counsel did not object to proceeding without Lawrence nor were there objections regarding absent witnesses. Appellants did not move for a continuance.
When the trial concluded, the jury found that all parties were negligent, and apportioned responsibility at: 1% Kathy Wilburn, 98% Korwin Wilburn, and 1% Dacus. There were no damages awarded. Thus, the trial court entered a take-nothing judgment for Dacus.
II. Analysis
A. Were Appellants' issues adequately briefed?
Appellants argue generally that the trial court erred by proceeding to trial without Lawrence Wilburn and another witness, Kammy Dismuke. But these arguments and the accompanying subpoints have not been briefed according to the rules of appellate procedure. See TEX. R. APP. P. 38.1.
Litigants appearing on their own behalf are held to the same standards as licensed attorneys and must comply with all applicable laws and rules of procedures. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Thus, a pro se litigant must properly present his case on appeal, and we may not apply different standards for litigants appearing without the advice of counsel. Morris v. A. Home Mortg. Serv. Inc., 360 S.W.3d 32, 26 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
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. Error may be forfeited through inadequate briefing. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994).
Here, Appellants' brief consists of conclusory statements that are unsupported by citations to the record or to authority that supports the arguments. Conclusory statements are not enough to raise an issue on appeal. See Izen v. Comm'n for Lawyer Discipline, 322 S.W.3d 308, 321-22 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). It is an appellant's burden to discuss his or her assertions of error, and appellate courts have no duty—or even the right—to perform an independent review of the record and the applicable law to determine whether there was error. Hernandez v. Hernandez, 318 S.W.3d 464, 465 (Tex. App.—El Paso 2010, no pet.). "We will not do the job of the advocate." Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.—Houston [1st Dist.] 1995, no writ). Accordingly, we conclude that appellants' issues are forfeited as inadequately briefed. See Washington v. Bank of N.Y., 362 S.W.3d 853, 854-855 (Tex. App.—Dallas 2012, no pet.).
B. Were Appellants' issues preserved for our review?
Moreover, even absent briefing waiver, Appellants would not prevail because the record does not reflect that Appellants timely voiced in the trial court any of the complaints that they assert in their appellate issues. As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion, and that the trial court (1) ruled on the request, objection, or motion, either expressly or implicitly, or (2) refused to rule, and the complaining party objected to that refusal. TEX. R. APP. P. 33.1(a); Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 829 (Tex. 2012) (preservation inquiry focuses on trial court's awareness of and opportunity to remedy problem).
In the present case, Appellants did not object to severing Lawrence Wilburn's claim or to proceeding without her in this case. Likewise, there is no indication that Appellants attempted to call Dismuke to testify or that her testimony was excluded. There was no offer of proof as to either witness, nor was there a motion for continuance. Under these circumstances, Appellants' failed to preserve any error for our review. See TEX. R. APP. P. 33.1(a).
III. Conclusion
Having resolved all of Appellants' issues against them, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 160522F.P06
JUDGMENT
On Appeal from the 416th Judicial District Court, Collin County, Texas
Trial Court Cause No. 416-02347-2013.
Opinion delivered by Justice Whitehill. Justices Fillmore and Boatright participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee SUSAN DACUS recover her costs of this appeal from appellant KATHY WILBURN AND KORWIN WILBURN. Judgment entered June 7, 2017.