Schied v. Merritt

• Decision Date: 12 July 2016
• Docket Number: NO. 01-15-00466-CV,01-15-00466-CV
• Parties: DAVID SCHIED, Appellant v. MICHAEL RAY MERRITT, Appellee
• Court: Texas Court of Appeals

DAVID SCHIED, Appellant v. MICHAEL RAY MERRITT, Appellee

NO. 01-15-00466-CV

Court of Appeals For The First District of Texas

July 12, 2016

On Appeal from Probate Court No. 1 Harris County, Texas

Trial Court Case No. 434,875

MEMORANDUM OPINION

Appellant David Schied is appealing the probate court's order granting appellee Michael Ray Merritt's no-evidence motion for summary judgment and dismissing appellant's contest to Merritt's application to probate the 2014 will of appellant's brother, Michael Edward Schied. We affirm.

Background

In January 2014, Michael Edward Schied executed his last will and testament which named Michael Ray Merritt as the independent executor. After Michael died in August 2014, Merritt filed an application to probate the will and for letters testamentary in Harris County probate court. Appellant, Michael's brother and a beneficiary under the will, filed a pro se contest to Merritt's application alleging that Merritt was not qualified to serve as executor.¹

In his contest, appellant also asked the probate court to (1) issue an order compelling Merritt and Jeanette Smith, appellant's sister and another beneficiary under the will, to produce certain records and documents regarding Michael's estate, including an itemized accounting of all property removed from his home, and (2) grant injunctive, declaratory, and other relief necessary to preserve the estate's assets. Appellant attached nineteen "exhibits" to his sixty-page pleading.

Appellant subsequently filed other motions and pleadings seeking various types of relief and attempting to formally join Jeannette, Jeanette's attorney RobinApostolakis, Merritt's wife Wynde Merritt, and Merritt's attorney David Munson, as parties.

On March 6, 2015, Merritt filed a no-evidence motion for summary judgment on appellant's contest to Merritt's qualifications to serve as the independent executor of Michael's estate. Appellant did not file a response to the motion.

On April 8, 2015, the probate court granted Merritt's no-evidence motion for summary judgment, dismissed appellant's contest, and signed an order stating that "[t]his judgment finally disposes of all parties and all claims and is appealable." The record reflects that appellant did not file a motion for new trial or request any post-judgment relief from the trial court. This appeal followed.

Pro Se Litigants

Appellant is representing himself in this case. Although we must liberally construe pro se pleadings and briefs, we nevertheless hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181,184-85 (Tex. 1978); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.); see also Harkins v. Dever Nursing Home, 999 S.W.2d 571, 573 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (requiring pro se litigants to substantially comply with appellate rules). A pro se litigant is required to properly present his case to both the trial and appellate courts. Valadez, 238 S.W.3d at 845. Otherwise, pro se litigantswould benefit from an unfair advantage over those parties who are represented by counsel. See id. Therefore, we do not make allowances or apply different standards when a case is presented by a litigant acting without the advice of counsel. See id.

The Texas Rules of Appellate Procedure control the required contents and organization for an appellant's brief. See TEX. R. APP. P. 38.1. An appellate brief is "meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case . . . ." Id. R. 38.9. Therefore, an appellant's brief must contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Id. R. 38.1(i). This requirement is not satisfied by merely uttering conclusory statements unsupported by legal citations. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no pet.). A brief must explain how the law that is cited is applicable to the facts of the case. Hernandez v. Hernandez, 318 S.W.3d 464, 466 (Tex. App.—El Paso 2010); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet. denied); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.—Houston [14th Dist.] 2002, no pet.). This Court has "no duty—or even right—to perform an independent review of the record and applicable law to determine whether there was error." Hernandez, 318 S.W.3d at 466; see 2218 Bryan St., Ltd. v. City of Dallas, 175 S.W.3d 58, 65 n.2 (Tex. App.—Dallas 2005, pet.denied). When an appellant's brief fails to contain a clear and concise argument for the contentions made with appropriate citations to legal authorities, the appellate court is not responsible for doing the legal research that might support that party's contentions. Bolling v. Farmers Branch Indep. Sch,=. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.). If we were to do so, we would be abandoning our role as judges and assuming the role of advocate for that party. Bolling, 315 S.W.3d at 895; Canton-Carter, 271 S.W.3d at 931.

Incorporation of Previous Filings by Reference

Appellant has attempted to incorporate by reference all of his previous filings in this case. The rules of appellate procedure and applicable case law require that all arguments must be set forth in the briefs; incorporating by reference arguments made in another document does not present an issue for appellate review. See Young v. Neatherlin, 102 S.W.3d 415, 423 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Accordingly, we will not consider any arguments raised in any of the documents appellant has attempted to incorporate by reference unless such arguments were sufficiently set forth in appellant's brief in compliance with Rule 38.1. See TEX. R. APP. P. 38.1; Young, 102 S.W.3d at 423; see also Francis v. State, 746 S.W.2d 276, 278 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd) (refusing to consider briefappellant had filed in another case that appellant attempted to incorporate by reference).

Parties

Although appellant filed a "Summons and Counter-Complaint and/or Cross Complaint," in which he attempted to assert claims against Jeanette, Wynde, Apostolakis, and Munson and join them as parties, the appellate record does not reflect that any of these individuals were properly served with citation or made an appearance in the trial court.

Specifically, the record does not reflect that appellant requested the Harris County clerk to issue citations to Jeanette, Wynde, Apostolakis, or Munson or that any such citations were ever issued in this case. Furthermore, the only "citation" included in the appellate record does not appear to have been prepared by the clerk because it was not signed by the clerk, and it does not contain the court's seal. See TEX. R. CIV. P. 99(a) ("when requested," trial court clerk shall issue citation, and requesting party is responsible for obtaining service), 99(b)(2) (stating citation "shall . . . be signed by the clerk under seal of court").

The record also does not reflect that Jeanette, Wynde, or Apostolakis filed an answer in this proceeding or sought any affirmative relief from the trial court.

Appellant contends that Munson made an appearance by virtue of the fact that he represented Merritt in this case. Munson, however, only appeared on behalf ofhis client; he did not file an answer, appear, or seek any relief from the trial court on his own behalf as a purported defendant.

Appellant further contends that Jeannette and Apostolakis appeared in this case when they attended a hearing, and that Apostolakis acknowledged that she represented Jeanette in this probate proceeding when Apostolakis sent appellant a letter regarding the will. On the contrary, one does not appear in a case by corresponding with one of the parties involved in the matter, or by being present in the courtroom during proceedings. See In re S.K.A., 236 S.W.3d 875, 895-96 (Tex. App.—Texarkana 2007, no pet.) (stating that purported defendant's letter written to opposing counsel, not court, insufficient to submit defendant to court's jurisdiction); Mays v. Perkins, 927 S.W.2d 222, 225 (Tex. App.—Houston [1st Dist.] 1996, no writ) (holding party's mere presence in courtroom during proceeding does not constitute an appearance); see generally Forty-Acre Spring Live Stock Co. v. W. Tex. Bank & Tr. Co., 111 S.W. 417, 419 (Tex. Civ. App. 1908, writ ref'd) ("'Appearance' means, ordinarily, the process by which a person, against whom a suit has been commenced, submits himself to the jurisdiction of the court.").

Because the record does not reflect that Jeanette, Wynde, Apostolakis, or Munson were served with a citation issued by the county clerk, or that they made an appearance in the trial court, they were not parties to the trial court's final judgment and, as such, they are not "appellees" for purposes of this appeal. See Yilmaz v.McGregor, 265 S.W.3d 631, 637 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) ("To be a 'party' to a lawsuit, one generally must be named in the pleadings and either be served, accept or waive service, or make an appearance. Merely being named in a petition as a defendant does not make one a 'party' to the lawsuit."); see also Showbiz Multimedia, LLC v. Mountain States Mortg. Ctrs., Inc., 303 S.W.3d 769, 771 n.3 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (noting that appellee must be party to trial court's final judgment and someone against whom appellant raises issues or points of error in appellant's brief).

Appellate Issues

Appellant argues on appeal that: (1) the trial court erred by denying his motions for default judgment against Merritt, Jeanette, Wynde,...