rosa-serrano-and-tlp-epl-enterprises-inc-dba-the-lense-factory-and-all ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ROSA SERRANO AND TLP-EPL §
ENTERPRISES, INC. DBA THE LENS No. 08-11-00191-CV
FACTORY; AND ALL OCCUPANTS OF §
11450 JAMES WATT, SUITE C1 AND C2 Appeal from the
EL PASO, TEXAS 79936, §
County Court at Law Number Five
Appellants, §
of El Paso County, Texas
v. §
(TC# 2011-J00021)
FRANCIS PROPERTIES I, LTD., §
Appellee.
OPINION
Appellee and lessor, Francis Properties I, Ltd., brought suit in justice court against
Appellants and tenants, Rosa Serrano, TLP-EPL Enterprises, Inc. d/b/a The Lens Factory
(Appellants), and others occupying a commercial premises in El Paso, Texas, for forcible detainer
and unpaid rent due under the terms of a commercial lease agreement. On February 28, 2011, a
jury returned a verdict in favor of Appellee. Appellants appealed the justice court’s ruling to
County Court at Law Number Five of El Paso County after posting bond.
After hearing Appellee’s motion for summary judgment and Appellants’ response thereto,
the trial court granted summary judgment in all respects on April 28, 2011, awarded possession of
the premises to Francis with writs of possession and execution to issue on or after May 16, 2011,
directed Appellants to pay Appellee actual and necessary attorneys’ fees and expenses with
post-judgment interest, and ordered, adjudged, and decreed the summary judgment to be a final
order disposing of all claims and all parties in the matter.
DISCUSSION
Appellants, appearing pro se, present twelve issues for our consideration, which include
challenges to jurisdiction. We first address Appellants’ jurisdictional challenges, which suffer
from the same briefing inadequacies as the non-jurisdictional issues we discuss below.
In the body of their argument, Appellants present jurisdictional challenges under two
headings: Subject Matter Jurisdiction and Jurisdictional Limits. Because Appellants’
jurisdictional issues embrace more than one specific ground of error, they are multifarious. See
Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010); In re J.L.B., 349 S.W.3d 836, 839 n.5
(Tex. App. – Texarkana 2011, no pet.). Accordingly, we decline to address any issue presented
therein other than jurisdiction.
The existence of subject matter jurisdiction is a question of law. State Dept. of Highways
and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). When the nature of the case
falls within the general category of cases that the court is empowered to adjudicate pursuant to
applicable statutory and constitutional provisions, subject matter jurisdiction exists. City of El
Paso v. Arditti, 378 S.W.3d 661, 665 (Tex. App. – El Paso 2012, no pet.). Jurisdiction over a
forcible detainer suit is expressly given to the justice court in the precinct where the property is
located and on appeal, to the county court for a trial de novo. See TEX. R. CIV. P. 749; TEX. PROP.
CODE ANN. § 24.004 (West Supp. 2012); see Puentes v. Fannie Mae, 350 S.W.3d 732, 738 (Tex.
App. – El Paso 2011, pet. dism’d); Padilla v. NCJ Development Inc., 218 S.W.3d 811, 815 (Tex.
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App. – El Paso 2007, pet. dism’d w.o.j.). It is undisputed that Appellee’s property is located in
the precinct where the property is located. Therefore, the justice court, and the county court on
appeal, had subject matter jurisdiction of the forcible detainer action.
The appellate jurisdiction of a statutory county court is confined to the jurisdictional limits
of the justice court, and the county court does not have appellate jurisdiction if the justice court did
not initially have jurisdiction. See Puentes, 350 S.W.3d at 738; Padilla, 218 S.W.3d at 815. A
justice court has original jurisdiction of civil matters in which exclusive jurisdiction is not in the
district or county court and in an amount in controversy that is not more than $10,000, exclusive of
interest. TEX. GOV'T CODE ANN. § 27.031(a)(1) (West Supp. 2012). The amount in controversy
here consists of Appellants’ unpaid rent totaling $9,604. Accrued interest and post-judgment
attorney’s fees are not normally considered in determining the amount in controversy. See
Tarrant Restoration v. TX Arlington Oaks Apartments, Ltd., 225 S.W.3d 721, 726 (Tex. App. –
Dallas 2007, pet. dism’d w.o.j.); Crumpton v. Stevens, 936 S.W.2d 473, 477 (Tex. App – Fort
Worth 1996, no writ). Because the amount in controversy was within the jurisdictional limits of
the justice court, jurisdiction vested in the justice court and county court.
On our own motion, we next consider our jurisdiction to consider any issue related to
possession of the premises. In a forcible detainer case, the sole issue is the right to immediate
possession of the premises. TEX. R. CIV. P. 746 (the only issue to be resolved is the right of actual
possession; the merits of title shall not be adjudicated); see Padilla, 218 S.W.3d at 814. A justice
court and, on appeal, a county court lack jurisdiction to resolve any questions of title beyond
immediate right to possession. See Puentes, 350 S.W.3d at 738; Black v. Washington Mut. Bank,
318 S.W.3d 414, 417 (Tex. App. – Houston [1st Dist.] 2010, pet. dism’d w.o.j.).
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At the time the county court’s judgment in this case was rendered, Section 24.007 of the
Texas Property Code provided, “A final judgment of a county court in an eviction suit may not be
appealed on the issue of possession unless the premises in question are being used for residential
purposes only.” 1 TEX. PROP. CODE ANN. § 24.007 (West Supp. 2012); see also Chang v.
Resolution Trust Corp., 814 S.W.2d 543, 545 (Tex. App. – Houston [1st Dist.] 1991, orig.
proceeding) (court of appeals was without appellate jurisdiction over action that awarded
possession of commercial property in a forcible entry and detainer suit); Carlson’s Hill Country
Beverage, L.C. v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 952–53 (Tex. App. – Austin
1997, no pet.) (Section 24.007 precludes appellate review of issue of possession of commercial
premises and of “any finding essential to the issue of possession”). It is undisputed that
Appellants used the premises at issue for commercial purposes and not for residential purposes.
Therefore, we are without jurisdiction to review the county court’s determination on the issue of
possession of the commercial premises or any finding that is essential to the issue of possession.
TEX. PROP. CODE ANN. § 24.007 (West Supp. 2012); Chang, 814 S.W.2d at 545; Carlson’s Hill
Country Beverage, L.C., 957 S.W.2d at 952–53. Appellants’ jurisdictional challenges are
overruled.
Because we have jurisdiction to address Appellants’ non-possession-related issues, we
consider those that remain. In Issue Two, Appellants ask, “Does Rule 143a set [a] deadline for
appeal of justice court judgment to county court to attain jurisdiction of subject matter?” Issue
Ten posits, “Notice is required prior to termination, does inadequate notice prescribe a court
without subject matter jurisdiction to render a valid judgment?” Appellants have presented Issue
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Notwithstanding any other law, a county court’s final judgment in an eviction suit rendered after January 1, 2012,
may be appealed. See TEX. PROP. CODE ANN. § 24.007 (West Supp. 2012).
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Eleven as, “Jurisdictional limits exceeded, can trial court attain jurisdiction?” As worded, these
issues ask that we provide advisory opinions. Advisory opinions decide abstract questions of law
without binding the parties. Cook v. Tom Brown Ministries, 385 S.W.3d 592, 600 (Tex. App. – El
Paso 2012, pet. denied). It is well-settled that courts of appeals are without authority to render
advisory opinions. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex.
1993); Cook, 385 S.W.3d at 600. Therefore, we decline to address these issues as stated.
We also conclude that we need not reach Appellants’ remaining complaints because we
find them to be inadequately briefed. Initially, we recognize that Appellants are acting pro se on
appeal, and that we must construe their appellate brief liberally. See Sterner v. Marathon Oil Co.,
767 S.W.2d 686, 690 (Tex. 1989). We also observe that Appellant Rosa Serrano has a lengthy
history of filing pro se briefs. 2 A party proceeding pro se must comply with all applicable
procedural rules. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App. – El Paso 2007, no pet.);
Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App. – El Paso 2006, no pet.); Clemens v.
Allen, 47 S.W.3d 26, 28 (Tex. App. – Amarillo 2000, no pet.); Harris v. Showcase Chevrolet, 231
S.W.3d 559, 561 (Tex. App. – Dallas 2007, no pet.). If that were not the case, pro se litigants
would be afforded an unfair advantage over those represented by counsel. Valadez, 238 S.W.3d
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Among the suits in which Serrano has filed pro se briefs are: Serrano v. Union Planter’s Bank, N.A., 155 S.W.3d
381 (Tex. App. – El Paso 2004, no pet.); Serrano v. Union Planter’s Bank, N.A., 162 S.W.3d 576, 577 (Tex. App. – El
Paso 2004, pet. denied); In re Serrano, 224 S.W.3d 225 (Tex. App. – El Paso 2005, orig. proceeding); Serrano v.
Ryan’s Crossing Apartments, 241 S.W.3d 560, 562 (Tex. App. – El Paso 2007, pet. denied); TLP-EPL Enterprises,
Inc. v. El Paso Times, No. 08-07-00114-CV, 2007 WL 2269733, at *1 (Tex. App. – El Paso Aug. 9, 2007, no pet.)
(mem. op., not designated for publication); Serrano v. First Prestons Mgmt. Corp., 346 S.W.3d 648 (Tex. App. – El
Paso 2009, no pet.); In re Serrano, No. 08-11-00145-CV, 2011 WL 2112753, at *1 (Tex. App. – El Paso May 27,
2011, no pet.) (mem. op., not designated for publication); Serrano v. Francis Properties I, Ltd., No. 08-11-00190-CV,
2011 WL 5189595, at *1 (Tex. App. – El Paso Nov. 2, 2011, no pet.) (mem. op., not designated for publication); In re
Serrano, No. 08-11-00294-CV, 2012 WL 163772, at *1 (Tex. App. – El Paso Jan. 18, 2012, no pet.) (mem. op., not
designated for publication); In re Serrano, No. 08-11-00366-CV, 2012 WL 248044, at *1 (Tex. App. – El Paso Jan.
25, 2012, no pet.) (mem. op., not designated for publication); In re Serrano, No. 08-12-00020-CV, 2012 WL 812384,
at *1 (Tex. App. – El Paso Mar. 7, 2012, no pet.) (mem. op., not designated for publication); Serrano v. Pellicano
Business Park, LLC, No. 08-12-00186-CV, 2012 WL 3100846, at *1 (Tex. App. – El Paso July 31, 2012, no pet.)
(mem. op., not designated for publication).
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at 845; Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex. App. – El Paso 2007, pet. struck);
Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App. – Amarillo 1998, pet. denied).
Therefore, on appeal, the pro se litigant must properly present her case. Valadez, 238 S.W.3d at
845; Martinez, 218 S.W.3d at 844; Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex.
App. – Dallas 2004, pet. denied); Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App. – Amarillo
2003, pet. denied).
An appellant’s brief is required, in part, to contain: (1) a statement of the case concisely
stating the nature of the case, the course of proceedings, and the trial court’s disposition of the
case, each of which should be supported by citation to the record and without discussion of the
facts; (2) a statement of facts that must be supported by record references; and (3) “a clear and
concise argument for the contentions made, with appropriate citations to authorities and to the
record.” TEX. R. APP. P. 38.1(d), (g), (i); see also Slagle v. Prickett, 345 S.W.3d 693, 700 (Tex.
App. – El Paso 2011, no pet.); Valadez, 238 S.W.3d at 845; see Walder v. State, 85 S.W.3d 824,
827 (Tex. App. – Waco 2002, no pet.) (“counsel should identify the evidence or other matters in
the record (e.g., pleadings, arguments, or objections) pertinent to the issue or point ‘with
appropriate citations . . . to the record[.]’”). We are not required to sift through the record in
search of facts supporting a party’s position. Nawas v. R & S Vending, 920 S.W.2d 734, 737
(Tex. App. – Houston [1st Dist.] 1996, no writ) (an appellate brief must include a fair, condensed
statement of facts pertinent to the points of error raised with references to pages in the record
where facts may be found, and appellate court is not required to search record without guidance to
determine whether a party’s assertions regarding facts of case are valid); see also Lawton v. State,
913 S.W.2d 542, 554 (Tex. Crim. App. 1995) (when a party does not refer the appellate court to the
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precise pages in the record where the error allegedly occurred, the appellate court may properly
overrule the issue as inadequately briefed); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim.
App. 1995) (it is not an appellate court’s task to review the record in an attempt to verify
appellant’s claims).
When the appellate issue is unsupported by argument or lacks citation to the record or legal
authority, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150
S.W.3d 423, 427 (Tex. 2004); Valadez, 238 S.W.3d at 845; Martinez, 218 S.W.3d at 844;
Plummer, 93 S.W.3d at 931; Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App. – Houston [14th
Dist.] 2002, no pet.). As we noted in Valadez:
It is the Appellant’s burden to discuss her assertions of error. An appellate court
has no duty - or even right - to perform an independent review of the record and
applicable law to determine whether there was error. Were we to do so, even on
behalf of a pro se appellant, we would be abandoning our role as neutral
adjudicators and become an advocate for that party.
Valadez, 238 S.W.3d at 845 (citations omitted).
Here, Appellants have provided no record citations in their brief for their statement of the
case, statement of facts, or arguments in support of their issues. See TEX. R. APP. P. 38.1(d), (g),
(i). Moreover, Appellants’ brief presents statements, facts, and argument that are unclear,
incomplete, and sometimes non-sensical. We therefore overrule Appellants’
non-possession-related complaints as inadequately briefed. See TEX. R. APP. P. 38.1; Sterling v.
Alexander, 99 S.W.3d 793, 799 (Tex. App. – Houston [14th Dist.] 2003, pet. denied) (issue
inadequately briefed when party failed to make proper citations to authority or the record and in
failing to make a cogent argument).
CONCLUSION
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The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
August 21, 2013
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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