Horton v. Stovall, 05-16-00744-CV

• Decision Date: 10 July 2018
• Docket Number: No. 05-16-00744-CV,05-16-00744-CV
• Citation: 588 S.W.3d 661
• Parties: Robbie Lesa Hames HORTON, Appellant v. Kimberly A. STOVALL, Appellee
• Court: Texas Court of Appeals

588 S.W.3d 661

Robbie Lesa Hames HORTON, Appellant
v.
Kimberly A. STOVALL, Appellee

No. 05-16-00744-CV

Court of Appeals of Texas, Dallas.

Opinion Filed July 10, 2018
Rehearing Denied August 15, 2018

MEMORANDUM OPINION

Opinion by Justice Evans

This suit was filed after the July 2012 breakup of a domestic relationship between Robbie Lesa Hames Horton¹ and Kimberly A. Stovall. The trial court favorably disposed of Stovall’s claims and adversely disposed of Horton’s counterclaims

588 S.W.3d 664

by granting three partial summary judgments and severing and abating one of Horton’s counterclaims. Horton timely filed her notice of appeal and complains in six issues that the trial court erred when it granted each order. For the reasons that follow, we affirm.

BACKGROUND

Stovall and Horton lived together with Horton’s children at a house on Centenary Avenue in Dallas, Texas. They acquired various personal property and debts. In addition to their domestic relationship, Horton worked in Stovall’s law practice. Horton entered into a relationship with David Horton, one of Stovall’s clients, whom Horton ultimately married. When Stovall and Horton severed their relationship, disputes arose over domestic and work-related matters and real and personal property. They entered into a settlement agreement to resolve their issues, but disputes erupted about the agreement. The first suit was filed by Stovall naming Horton, David Horton, and at least one of Horton’s children as defendants. Horton then sued JP Morgan Chase Bank, N.A. alleging that the bank improperly allowed Stovall to withdraw $345,090.20 from Horton’s account. In Stovall’s suit, Horton and David Horton filed counterclaims. Stovall filed and amended several motions for summary judgment which were never heard or overruled on by the trial court. By the time Stovall filed her three motions for partial summary judgment at issue in this appeal, she had filed her seventh amended petition that asserted two claims solely against Horton: breach of contract and declaratory judgment. Stovall then moved for the three partial summary judgments that the trial court granted on March 6, 2015, June 29, 2015, and March 14, 2016. In addition, the trial court severed and abated one counterclaim filed by Horton. The trial court severed claims involving other parties, and Stovall filed various non-suits resulting in the trial court’s summary judgments becoming a final, appealable judgment. Horton timely perfected this appeal.

APPLICABLE LAW

We affirm a traditional summary judgment if the movant establishes as a matter of law all elements of her claim, establishes all elements of an affirmative defense to the non-movant’s claim, or disproves at least one element of the non-movant’s claim, and the non-movant fails to bring forward evidence creating a genuine issue of material fact. See TEX. R. CIV. P. 166a(c) ; Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999) (movant seeking summary judgment on movant’s own claims must conclusively prove all essential elements of claim); Adams v. Oncor Elec. Delivery Co., 385 S.W.3d 678, 681 (Tex. App.—Dallas 2012, no pet.) (movant seeking summary judgment on non-movant’s claims must establish all elements of affirmative defense or disprove at least one element of claim). We affirm no-evidence summary judgments unless the nonmoving party demonstrates she brought forth in the trial court more than a scintilla of probative evidence to raise a genuine issue of material fact on each challenged element of her cause of action. See TEX. R. CIV. P. 166a(i) ; Adams , 385 S.W.3d at 681. We conduct a de novo review of the trial court’s summary judgment, examining the record in the light most favorable to the nonmovant, indulging every reasonable inference in her favor, and resolving any doubt against the movant. See Kalyanaram v. Univ. of Tex. Sys. , 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet. denied). When the summary judgment order does not state the ground on which summary judgment was granted, the summary judgment will be affirmed if any of the grounds

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are meritorious. FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex. 2000).

The record on which the trial court makes its summary judgment decision and on which we review the summary judgment is created by the movant and non-movant filing the evidence on which they rely as attachments to their respective motion or response, or by reference to appendices they file. See TEX. R. CIV. P. 166a(a) (attachment by movant), (b) (attachment by non-movant), (d) (appendices filed and referred to by either movant or non-movant). Unless the appellate record clearly indicates the trial court considered evidence outside the summary judgment record, we will not consider evidence elsewhere in the trial court’s file, such as a response to a different motion for summary judgment or evidence supporting a motion for new trial. See Saenz v. S. Union Gas Co. , 999 S.W.2d 490, 494 (Tex. App.—El Paso 1999, pet. denied) (when no request for trial court to take judicial notice of evidence attached to response to previous motion for summary judgment, that evidence was not considered by trial or appellate courts); Wai Ling Lee v. Palacios , No. 14-06-00428-CV, 2007 WL 2990277, at *2 (Tex. App.—Houston [14th Dist.] Oct. 11, 2007, pet. denied) (mem. op.) (evidence attached to non-movant’s motion for new trial filed after summary judgment granted not considered by trial or appellate courts).

An appellant may generally challenge a summary judgment when stating her issue, which permits her to argue any possible basis that the trial court erred in granting the summary judgment. See Malooly Brothers, Inc. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970). But a Malooly issue only preserves a complaint that is supported by argument in an appellant’s brief. See Cruikshank v. Consumer Direct Mortg., Inc. , 138 S.W.3d 497, 502 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) ("Although Cruikshank has made a general Malooly point of error, we hold this is only sufficient to preserve a complaint if the specific ground challenged on appeal is supported by argument."); Pena v. State Farm Lloyds , 980 S.W.2d 949, 959 (Tex. App.—Corpus Christi 1998, no pet.) ( Malooly general point of error does not relieve appellant of challenging grounds for summary judgment with specific arguments on appeal). So even under a de novo review standard of an appellant’s general Malooly issue, our review is limited to the arguments asserted by an appellant in her brief. See Cruikshank , 138 S.W.3d at 502–03 ; Pena , 980 S.W.2d at 959.

Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to "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). Courts must construe briefs "reasonably yet liberally." Republic Underwriters Ins. Co. v. Mex-Tex, Inc. , 150 S.W.3d 423, 427 (Tex. 2004). Even liberally construed, it must be appellant who makes some specific argument and analysis showing that the record and law support appellant’s contentions. See Strange v. Cont'l Cas. Co. , 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied) ("An issue on appeal unsupported by argument or citation to any legal authority presents nothing for the court to review."); Birnbaum v. Law Offices of G. David Westfall , 120 S.W.3d 470, 477 (Tex. App.—Dallas 2003, pet. denied) ; Deutsch v. Hoover, Bax & Slovacek, L.L.P. , 97 S.W.3d 179, 198–99 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We cannot write an appellant’s brief for her, as we observed in Bolling v. Farmers Branch Independent School District , 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.) :

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We are not responsible for identifying possible trial court error. See Canton-Carter v. Baylor College of Medicine , 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We are not responsible for searching the record for facts that may be favorable to a party’s position. See Fredonia State Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 283–84 (Tex. 1994) ; Strange , 126 S.W.3d at 678. And we are not responsible for doing the legal research that might support a party’s contentions. See Canton-Carter , 271 S.W.3d at 931–32. Were we to do so, even for a pro se litigant untrained in law, we would be abandoning our role as judges and become an advocate for that party. See Valadez v. Avitia , 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).

Id. Further, " ‘[a]n appendix is not a substitute for a clerk’s record nor are citations to the appendix a substitute for citations to the record.’ " Jackson v. Citibank (S.D.), N.A. , 345 S.W.3d 214, 214 (Tex. App.—Dallas 2011, no pet.) (quoting Willms v. Wilson , No. 05-08-01718-CV, 2009 WL 4283109, at *1 (Tex. App.—Dallas Dec. 2, 2009, no pet.) (mem. op.)). In addition, we may not consider documents in an appendix that are not in the appellate record. See Deutsch , 97 S.W.3d at 198 ; see also Quorum Int'l v. Tarrant Appraisal Dist. , 114 S.W.3d 568, 572 (Tex. App.—Fort Worth 2003, pet. denied) ("We cannot look outside the record in an effort to discover relevant facts omitted by the parties; rather, we are bound to determine this case on the record as...