Opinion
No. 05-04-01060-CV
Opinion Filed July 29, 2005.
On Appeal from the 116th District Court, Dallas County, Texas, Trial Court Cause No. 04-01628-F.
Affirm.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
MEMORANDUM OPINION
Pro se appellants William N. and Jan Watson appeal a summary judgment granted in favor of Bank of America, N.A. We affirm. Because the issues in this appeal are well-settled, we issue this memorandum opinion. Tex.R.App.P. 47.4.
BACKGROUND
According to the parties, the Watsons filed suit against the Bank contending that the Bank misapplied, mishandled, and failed to credit mortgage payments tendered by the Watsons. The Bank filed a motion for summary judgment asking the court to dismiss the Watsons' claims based on the affirmative defenses of res judicata, Jan Watson's lack of standing, the Bank's compliance with the Real Estate Settlement Procedures Act (RESPA), and release by the terms of a settlement agreement. It also moved for summary judgment on its counterclaim for breach of the settlement agreement. The trial court granted the Bank's motion for summary judgment, dismissed the Watson's claims against the Bank, and awarded the Bank recovery on its counterclaim against William Watson.
The Watsons' Original Petition was not included in the appellate record.
REQUIREMENTS FOR APPELLATE BRIEFING
The rules of appellate procedure require 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(h). Although we must "construe the rules of appellate procedure `reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of the rule,'" we cannot remedy deficiencies in a litigant's brief. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas 2005, no pet.); Jordan v. Jefferson County, 153 S.W.3d 670, 676 (Tex.App.-Amarillo 2004, pet. denied) (citing Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004)). We must remain neutral and cannot become an advocate for a particular litigant by performing their research and developing their argument for them or perform an independent review of the record and applicable law to determine whether the error complained of occurred. See Green, 152 S.W.3d at 841; Jordan, 153 S.W.3d at 676.
Additionally, a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 677 (Tex.App.-Dallas 2004, no pet.). On appeal, as at trial, the pro se appellant must properly present its case. Id. at 678.
APPELLANTS' BRIEF
Because their first brief did not satisfy the requirements for appellate briefing, this court instructed the Watsons to file an amended brief. Nevertheless, in their amended brief, the Watsons still did not include appropriate citations to authorities and to the record or satisfy other requirements of the rules.
The Watsons amended brief lists eleven issues and an eleven point summary of the argument. But the summary of the argument points do not match up with the issues and contain only limited and general record references. Because of the manner in which the issues and the summary of the argument are presented, it is difficult to determine what the Watsons are arguing. In response, the Bank contends that the Watsons waived each of their arguments because of improper briefing, but goes on to attempt to address the arguments.
In their first and third issues, the Watsons contend generally that the Bank was not entitled to summary judgment because of the existence of genuine issues of material fact. In issue two, they contend that the matters of intent, reliance, reasonable care, and unliquidated damages "have been held to be inappropriate for resolution by summary judgment and are involved in the case at hand." In issue four, the Watsons contend that the Bank's failure to produce requested discovery documents "raise controverted material issues of fact, thereby precluding the granting of summary judgment." In their sixth issue, the Watsons contend that the doctrine of res judicata does not apply to this case. In issue seven, they contend that there were issues of fact regarding whether Jan Watson had standing to sue. In issues eight and nine, they contend that there were issues of fact regarding the Bank's compliance with REPSA. In issue ten, the Watsons contend that "[u]nder Texas and federal law, there should be a judicial termination of a mortgage when the party holding out to be a mortgagee cannot produce proof of the assignment and transfer of the mortgage and deed of trust," opening the door to "grave issues of material fact which should prevent the granting of summary judgment." In issue eleven, they contend that the Bank's "allegation that the Watsons are forty-two (42) mortgage payments in arrears since August 2000, as of March 2, 2004, defies fact, practicality and logic and raises material issues of fact, thereby precluding summary judgment." They go on to state that "[a]s a matter of record, some of [the Watsons'] payments to [the Bank] were made within the past six (6) months in the trial court from which this appeal originates."
The Watsons did not include proper citations to the record or to any legal authority or argument supporting the issues. Although they included an alphabetized list of authorities along with page numbers in their brief, they did not mention the authorities on the pages referenced or explain how the authorities applied. They also included some general references to the record, but did not explain how the record references apply to their argument. As a result, their brief presents nothing for review. See Green, 152 S.W.3d at 842.
But even if they had properly presented any issues, we would still affirm the trial court's judgment. The Watsons do not provide any argument that could be construed as contending that the summary judgment was improper based on release by a settlement agreement, one of the alternative affirmative defenses presented in the Bank's motion for summary judgment. In its summary judgment, the trial court did not specify the grounds on which it was granting summary judgment. Because the Bank's summary judgment may have been granted, properly or improperly, on a ground not challenged by the Watsons, we must affirm the judgment. See Juarez v. Miller, No. 05-04-01305-CV, 2005 WL 1331650, at *1 (Tex.App.-Dallas June 7, 2005, no pet. h.); Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied). We overrule the Watsons' first through fourth and sixth through eleventh issues.
In issue five, the Watsons contend that their affidavit "controverts [the Bank's] motion for summary judgment and shows the existence of disputed issues of material fact." Again, the Watsons did not include citations to the record or to legal authority and did not preserve the issue for review. Id. Furthermore, the trial court sustained the Bank's objection to and struck the Watsons' affidavit filed with the Watsons' response to the Bank's motion for summary judgment. The Watsons do not assert that the trial court erred by striking the affidavit. Therefore, the propriety of the Bank's motion to strike and the court's ruling striking the affidavit are not at issue, and the Watsons have waived any right to complain about the affidavit or whether the affidavit created a fact issue for review on appeal. Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 264-65 (Tex.App.-Fort Worth 1986, no writ). We overrule the Watsons' fifth issue.
CONCLUSION
Having overruled all of the Watsons' issues on appeal, we affirm the trial court's judgment.