Opinion
No. 05-08-00318-CV
Opinion issued February 11, 2011.
On Appeal from the 14th Judicial District Court Dallas County, Texas, Trial Court Cause No. 06-10440-A.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice FILLMORE.
MEMORANDUM OPINION
Appellant H. Wayne Meachum appeals the trial court's summary judgment in favor of appellees JP Morgan Chase Bank, N.A., Trustee, and Homecomings Financial Network, Inc. In three issues, Meachum contends (i) the trial court erred in granting appellees' motion for summary judgment because there was no competent summary judgment evidence before the trial court, (ii) appellees failed to provide necessary proof that JP Morgan was the legal holder of a home equity note executed by Meachum, and (iii) appellees failed to provide proof that the amount of the note did not exceed 80 percent of the value of the homestead property. Because the facts are well known to the parties and the issues of law are settled, we issue this memorandum opinion in accordance with rule of appellate procedure 47.4. We affirm the trial court's judgment.
Background
Meachum filed this lawsuit against appellees after appellee JP Morgan filed a suit for foreclosure against Meachum. Meachum alleges that a Texas Home Equity Note he executed is ambiguous, that a Texas Home Equity Security Instrument he executed violates the Texas constitution, and that an assignment of the Deed of Trust securing the loan to Meachum is ambiguous. Appellees filed a motion for summary judgment on Meachum's allegations. The trial court granted appellees' motion for summary judgment. Meachum's motion for new trial was denied. Meachum filed this appeal.
Discussion
Meachum's original brief before this Court was deficient because, among other things, it did not contain a concise statement of the facts supported by record references and the argument did not contain appropriate citations to authorities or to the record. Meachum was notified by this Court that his brief did not comply with rule of appellate procedure 38.1 and was directed to file an amended brief that corrected the noted deficiencies in his brief. Meachum filed an amended brief that similarly fails to comply with rule of appellate procedure 38.1.
In three issues, Meachum contends the trial court erred in granting appellees' motion for summary judgment because (i) there was no competent summary judgment evidence before the trial court, (ii) appellees failed to provide "necessary proof that [appellee] JP Morgan Chase, N.A. was the legal holder of the note on which it sought a court order," and (iii) appellees failed to provide necessary proof that the amount of the note did not exceed 80 percent of the value of the homestead property. The "argument and authorities" supporting these three issues comprises less than two pages of Meachum's amended brief. Meachum's amended brief allocates three sentences to argument of his first issue, four sentences to argument of his second issue, and two sentences to argument of his third issue. Other than a reference to rule 166a and a statement that under the Texas constitution, a homestead cannot be used for collateral on a loan except when the amount of the loan does not exceed 80 percent of the value of the homestead, Meachum cites no legal authority for his contentions. There is a single record cite in the entire amended brief. Meachum's amended brief contains no analysis to support his contentions that the trial court erred in granting appellees' motion for summary judgment.
The law is well established that, to present an issue to this Court, a party's brief shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1; McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex. App.-Dallas 2001, 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). Bare assertions of error, without argument or authority, are insufficient to preserve error for our review. See Sullivan v. Bickel Brewer, 943 S.W.2d 477, 486 (Tex. App.-Dallas 1995, writ denied). When a party fails to adequately brief a complaint, he waives the issue on appeal. In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.-Dallas 2008, no pet.); Devine v. Dallas Cnty., 130 S.W.3d 512, 513-14 (Tex. App.-Dallas 2004, no pet.); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point of error due to inadequate briefing).
Because Meachum has failed to provide this Court with a clear and concise argument supported by appropriate citations to authority and the record, we conclude he has waived his complaints on appeal by inadequate briefing. See Tex. R. App. P. 38.1(i). Notwithstanding our conclusion, we address Meachum's contentions on appeal and conclude that he has shown no reversible error.
In his first issue, Meachum contends the trial court erred in granting summary judgment in favor of appellees because there was no competent summary judgment evidence. Relying solely upon rule of civil procedure 166a, Meachum contends appellees provided the trial court with "no affidavits, authenticated documents, or even verified pleadings, or any other certified or verified evidence upon which to base a summary judgment."
Appellees attached the Texas Home Equity Note and the Texas Home Equity Security Instrument (First Lien) executed by Meachum to their motion for summary judgment. At the trial court, Meachum did not challenge appellees' summary judgment evidence. In his response to the motion for summary judgment and his motion for new trial, Meachum contended only that the Texas Home Equity Note and the "Corporate [sic] Assignment of Deed of Trust" are ambiguous.
Meachum attached the "Corporation Assignment of Deed of Trust" to his response to the motion for summary judgment.
The Texas Home Equity Security Instrument was competent summary judgment evidence. It contains a stamp demonstrating it was filed in the Dallas County property records. It is, therefore, self-authenticated under Texas Rule of Evidence 902(4). See Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 362 n. 2 (Tex. App.-Dallas 2007, pet denied) (publicly filed property records do not have to be authenticated as business records in order to constitute competent summary judgment evidence); Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 446 (Tex. App.-Houston [1st Dist.] 2006, pet. denied).
With regard to the Texas Home Equity Note, Meachum judicially admitted he executed the note. Meachum attached the Texas Home Equity Note to his petition in this case, and under "Background Facts," he stated that he executed the Texas Home Equity Note attached to his pleading. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (assertions of fact in live pleadings of a party, not pleaded in the alternative, are regarded as formal judicial admissions); Houston First Am. Savs. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983) (same); see also Nexion Health at Terrell Manor v. Taylor, 294 S.W.3d 787, 795 (Tex. App.-Dallas 2009, no pet.) (judicial admission is conclusive upon party making it, and it relieves opposing party's burden of proving the admitted fact, and bars admitting party from disputing it); Bowen v. Robinson, 227 S.W.3d 86, 92 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (judicially admitted fact is established as matter of law, and admitting party may not dispute it or introduce evidence contrary to it). Accordingly, the Texas Home Equity Note was competent summary judgment evidence.
Even had Meachum's first issue been properly briefed, we would overrule his first complaint regarding appellees' summary judgment evidence. Meachum judicially admitted he executed the Texas Home Equity Note as attached to his petition in this suit. The Texas Home Equity Security Instrument filed in the county property records was self-authenticated. There was competent summary judgment evidence before the trial court. We overrule Meachum's first issue.
In his second and third issues, Meachum asserts appellees failed to provide necessary proof that appellee JP Morgan was the legal holder of the Texas Home Equity Note and that the amount of the note did not exceed 80 percent of the value of the homestead property. According to the record, Meachum did not raise these issues with the trial court. Further, Meachum's counsel acknowledged at oral submission of this appeal that neither Meachum's second nor third issue on appeal were raised in the trial court.
It is well settled that in order to preserve a complaint for appellate review, the complaint must be brought to the trial court's attention in a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1); Knapp v. Wilson N. Jones Mem'l Hosp., 281 S.W.3d 163, 170 (Tex. App.-Dallas 2009, no pet.). Even had Meachum's second and third issues been properly briefed, nothing is preserved for our review of these issues. For the reasons stated above, we overrule Meachum's second and third issues.