Lurea Hornbuckle v. State Farm Insurance and David Kirkpatrick ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00387-CV
LUREA HORNBUCKLE APPELLANT
V.
STATE FARM INSURANCE AND APPELLEES
DAVID KIRKPATRICK
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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 2015-005432-2
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MEMORANDUM OPINION1
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I. INTRODUCTION
In seven issues, Appellant Lurea Hornbuckle, proceeding pro se,
challenges the trial court’s summary judgment in favor of Appellees State Farm
Insurance and David Kirkpatrick. Because none of Hornbuckle’s seven issues is
1
See Tex. R. App. P. 47.4.
adequately briefed in accordance with Texas Rule of Appellate Procedure 38.1,
we will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Hornbuckle insured a home located at 4725 Aramis Drive, Arlington,
Texas, (the Property) with State Farm. Hornbuckle filed suit against State Farm
and insurance adjuster Jerry Thompson in the 352nd District Court in Tarrant
County for two claims arising under the policy: claim number 43-1C00-262
(which is not involved in this appeal) pertained to water damage to the Property
on or about May 28, 2012; and claim number 43-20M3-0024 pertained to
damage to personal property that was moved from the Property to a storage
facility in Mansfield on or about June 7, 2013.
In December 2013, Hornbuckle and her son executed a settlement
agreement and release of all claims, which included the following:
FOR AND IN CONSIDERATION of the delivery of one or more
checks to LUREA HORNBUCKLE and/or WILLIAM
HORNBUCKLE, JR. (the Undersigned) and the Law Firm of Caleb
Moore, PLLC, in the total aggregate sum of FIFTEEN THOUSAND
and NO/100 DOLLARS ($15,000.00) the receipt and sufficiency of
which is hereby acknowledged, the Undersigned does hereby
release and forever discharge STATE FARM LLOYDS, JERRY
THOMPSON[,] and DAVID KIRKPATRICK, . . . (the Released
Parties) of and from any and all claims, demands, damages,
actions[,] or causes of action that are or could be asserted by the
Undersigned in this lawsuit or in any way relating to or arising on
account of damages that occurred on or before the date this lawsuit
was filed and on or after the date this lawsuit was filed, including but
not limited to claims for damage arising under policy number 58-BR-
2033-9 and identified as claim numbers: 43-1C00-262 and 43-
20M3-024.
2
....
The Undersigned further agrees to dismiss all claims against
the Released Parties as described above and in this lawsuit with
prejudice to re-filing of same.
The Undersigned understands and agrees that the purpose of
this Settlement Agreement and Release of All Claims is to forever
compromise, settle, and release any and all claims that are or could
be asserted by the Undersigned against the Released Parties as
described above. It is further understood that this is a FULL AND
FINAL RELEASE and settlement of all past, present[,] and future
claims, demands, obligations, actions[,] or causes of action of every
nature and kind whatsoever, whether known or unknown, suspected
or unsuspected, now and forever against the Released Parties,
identified herein as Claim No. 43-1C00-262 and Claim No. 43-20M3-
024.
Hornbuckle’s signature and her son’s signature appear on the settlement
agreement and release, and both signatures are separately notarized. State
Farm tendered a check in the amount of $15,000.00 made payable to “Law
Office Of Caleb Moore In Trust For Lurea Hornbuckle,” and Caleb Moore
endorsed the check.
On December 23, 2013, the 352nd District Court signed an agreed order of
dismissal and ordered that Hornbuckle’s suit against State Farm and adjuster
Thompson be dismissed with prejudice. The order was approved by
Hornbuckle’s attorney Caleb Moore.
Approximately one year later, on February 3, 2015, Hornbuckle filed suit in
Justice of the Peace Court Precinct No. 8 (JP court) against Appellees for claims
arising from the handling and the alleged nonpayment of claim number 43-20M3-
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024. Appellees2 filed a general denial and asserted the affirmative defense of
settlement and release. In due course, Appellees filed a motion for summary
judgment on all of Hornbuckle’s claims and causes of action, which the JP court
granted.
Hornbuckle sought de novo review before the county court at law (the trial
court). Appellees moved for summary judgment on Hornbuckle’s causes of
action and on their affirmative defense of settlement and release. In support of
their motion for traditional summary judgment, Appellees attached summary-
judgment evidence establishing the release of all claims related to claim number
43-20M3-024 for the June 7, 2013 water damage, the settlement payment of
$15,000, and the dismissal of Hornbuckle’s prior suit on claim number 43-20M3-
024 that she had filed in the 352nd District Court. Hornbuckle filed a response
and attached checks from State Farm that predated the settlement agreement.
The trial court thereafter granted Appellees’ motion for summary judgment.
III. INADEQUATE BRIEFING
In her first amended brief,3 Hornbuckle purports to raise seven issues. The
arguments under each of the issues presented are repetitive; do not necessarily
2
State Farm Llloyds answered and filed special exceptions in the trial court
pointing out that Hornbuckle had incorrectly named and sued State Farm
Insurance.
3
The clerk of our court sent a letter to Hornbuckle after she tendered her
initial brief for filing with this court notifying her of the deficiencies in her brief and
requesting that she file an amended brief.
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correspond to the issues; and are, for the most part, incoherent.4 Under her first
issue, Hornbuckle seems to argue that the summary-judgment procedure utilized
by the trial court to dispose of the case deprived of her of due process and her
right to a trial by jury.5 Under her second issue, Hornbuckle appears to argue
that the evidence regarding the inspection performed in claim number 43-20M3-
024 constituted hearsay; however, any evidence related to the inspection
performed in claim number 43-20M3-024 was presented when that claim was
resolved in the 352nd District Court, not the trial court. Under her third issue,
4
As an example, we set forth the following from page 17 of her brief, in
which Hornbuckle presents her second issue and her one-sentence argument
under that issue:
MISREPSENTATION OF THE MATERIAL FACTS OF
CIRCUMSTANCES , USING DECEIT UPON THE COURT
TO MAKE BELIEVE YEAR MAY 28, 2012 CLAIM IS PART
OF YEAR LATER JUNE 07,2013 CLAIM, “FRAUDULENT
SETTLEMENT AGREEMENT WITH RELEASE OF ALL
CLAIMS , FRAUDULENT NOTARY SEAL,DECEIT UPON
COURT FOR DISMISSAL, CONCEALMENT OF
EVIDENCE.
State Farm Lloyds & Jerry Thompson and Legal Counsel
knowingly a new claim was filed one year later,” June 07,
2013 Claim NO 43-20M3 -024 damage to personal property
moved to a storage facility, 5105 Mansfield Highway Fort
Worth, Texas 76119, Claim Acknowledged and Inspection
set up by Adjuster David Kirkpatrick using deceit upon the
Court Have not presented “EVIDENCE , only Hearsay.
5
See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 336, 99 S. Ct.
645, 654 (1979) (noting that procedural devices such as summary judgment and
directed verdict do not violate the federal constitution’s right to jury trial in civil
cases).
5
Hornbuckle appears to complain about how her attorney handled the $15,000
check made payable to him from State Farm. In her fourth issue, Hornbuckle
apparently complains of a vexatious litigant ruling from the 352nd District Court.
Under her fifth issue, Hornbuckle contends that Appellees’ attorneys violated “the
Rules of Law, commit[ted] Fraud upon the Court and Corrupt[ed] the legal
system Ethical Standard” by filing a motion for traditional summary judgment in
an “attempt to avoid Trial by Jury.” Under her sixth issue, Hornbuckle appears to
argue that all of Appellees’ summary-judgment evidence was false and meant for
deceit. Under her seventh issue, Hornbuckle reiterates that Appellees’ attorneys
violated some unnamed rule by filing a motion for summary judgment because
they were “attempting to avoid [the] time and expense of Trial and [to] eliminate
the risk of losing at Trial and [to] avoid discovery Evidence.” She cites no case
law in support of any of her issues.
Although we liberally construe pro se briefs, litigants who represent
themselves are held to the same standards as litigants represented by counsel.
See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978). To
hold otherwise would give pro se litigants an unfair advantage over litigants with
an attorney. Id. The Texas Rules of Appellate Procedure require that a brief
“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); ERI Consulting
Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010) (recognizing that “[t]he
Texas Rules of Appellate Procedure require adequate briefing.”). The appellate
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court has no duty to brief issues for an appellant. Mullendore v. Muehlstein, 441
S.W.3d 426, 429 (Tex. App.––El Paso 2014, pet. abated). In the absence of
appropriate record citations or a substantive analysis, a brief does not present an
adequate appellate issue. Magana v. Citibank, N.A., 454 S.W.3d 667, 680–81
(Tex. App.––Houston [14th Dist.] 2014, pet. denied) (deeming issue waived due
to inadequate briefing); WorldPeace v. Comm’n for Lawyer Discipline, 183
S.W.3d 451, 460 (Tex. App.––Houston [14th Dist.] 2005, pet. denied) (holding
failure of appellant’s brief to offer argument, citations to record, or citations to
authority waived issue on appeal); Devine v. Dallas Cty., 130 S.W.3d 512, 513–
14 (Tex. App.––Dallas 2004, no pet.) (holding party failing to adequately brief
complaint waived issue on appeal); see also Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (recognizing long-standing
rule that error may be waived due to inadequate briefing). An appellant must
discuss the facts and the authorities relied upon as may be requisite to maintain
the point at issue. Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106
S.W.3d 118, 128 (Tex. App.––Houston [1st Dist.] 2002, pet. denied). “This is not
done by merely uttering brief conclusory statements, unsupported by legal
citations.” Id.
Because Hornbuckle has failed to adequately brief her issues, even after
being notified of the deficiencies in her initial appellate brief, we hold that the
seven issues she purports to raise have been waived, and we overrule them.
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IV. CONCLUSION
Having overruled all of Hornbuckle’s issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: October 13, 2016
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