Juan Cruz v. Deutche Bank National Trust ( 2016 )

Affirm and Opinion Filed October 18, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01358-CV
JUAN CRUZ, Appellant
V.
DEUTCHE BANK NATIONAL TRUST, Appellee
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-14-04351-C
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Fillmore, and Justice Brown
Opinion by Chief Justice Wright
Juan Cruz, a pro se litigant, files this appeal complaining of the trial court’s final
judgment in a forcible detainer action awarding possession of certain real property to Deutsche
Bank National Trust. Cruz contends the trial court erred in granting possession of the property to
Deutsche Bank because Deutsche Bank’s forcible detainer action was based upon a wrongful
foreclosure. Because all dispositive issues are settled in law, we issue this memorandum
opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.
BACKGROUND
On December 4, 2004, Maria Caballero and Juan Cruz executed a deed of trust with
respect to certain real property located at 2609 Beau Drive, Mesquite, Texas (the Property),
securing the repayment of a promissory note in the principal amount of $106,400 from Long
Beach Mortgage Company. The deed of trust provided that Long Beach Mortgage Company had
the right to foreclose and sell the Property if Caballero and Cruz defaulted on the promissory
note. The deed of trust stated:
If the Property is sold pursuant to this paragraph 21 [acceleration; remedies],
Borrower or any person holding possession of the Property through Borrower
shall immediately surrender possession of the Property to the purchaser at that
sale. If possession is not surrendered, Borrower or such person shall be a tenant
at sufferance and may be removed by writ of possession.
After an alleged default, Long Beach Mortgage Company foreclosed on the Property, conducted
a foreclosure sale, and on July 1, 2014, sold the Property to Deutche Bank.1 On July 18, 2014,
Deutche Bank sent written notice of foreclosure and demand for possession to Caballero, Cruz,
and all other occupants. On July 30, 2014, Deutche Bank filed a verified complaint for forcible
detainer in the Justice of the Peace Court, Precinct 2, Position 1, Dallas County, Texas. The
Justice of the Peace Court awarded possession of the Property to Deutsche Bank on August 8,
2014. Cruz filed a notice of appeal on August 12, 2014.
The forcible detainer appeal was tried on October 17, 2014. Juan Cruz appeared pro se;
Maria Caballero did not appear at all. According to the reporter’s record of the trial, Deutsche
Bank offered certified copies of the deed of trust and substitute trustee’s deed, and copies of the
notices to vacate with accompanying proof of mailing by certified mail supported by a business
records affidavit, all of which were admitted into evidence.2 Counsel for Deutsche Bank
informed the trial court that it only sought possession of the Property. In response to questions
by the trial judge, Cruz conceded that neither he nor Maria Caballero had paid the mortgage
payments. Following oral arguments by both parties, the trial court signed a final judgment
awarding exclusive possession of the Property to Deutsche Bank. The trial court later signed an
1
The record on appeal does not contain any evidence of the alleged default or the foreclosure sale and does not contain a copy of the Trustee’s
Deed.
2
The record on appeal does not include any of the trial exhibits.
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amended final judgment awarding possession of the Property to Deutsche Bank and ordering a
supersedeas bond pending appeal in the amount of $800.00, renewable monthly. Cruz timely
filed his pro se notice of appeal; Caballero did not appeal.
DEFICIENT BRIEF
We begin by addressing appellees’ argument that Cruz waived all of his issues on appeal
because he failed to comply with Texas Rule of Appellate Procedure 38.1. Cruz’s brief was
originally due on May 7, 2015. After seeking and receiving three extensions of time within
which to file his brief, Cruz filed a brief on August 7, 2015. On August 14, 2015, this Court
notified Cruz that his brief did not satisfy the requirements of the Texas Rules of Appellate
Procedure because it failed to comply with rule 38.1(a), (b), (c), (d), (g), (h), (i), and (k). Cruz
was given ten days to correct the deficiencies. Instead of filing an amended brief as instructed,
Cruz filed four additional motions for extensions of time within which to file an amended brief,
despite repeated admonition by this Court that failure to file an amended brief by the specified
date would result in the appeal being submitted on Cruz’s deficient brief. After Cruz failed to
comply with this Court’s order to file his amended brief by February 1, 2016, the appeal was
submitted on Cruz’s deficient brief.
The Texas Rules of Appellate Procedure control the required contents and organization of
an appellant’s brief. See TEX. R. APP. P. 38.1; ERI Consulting Eng’rs, Inc. v. Swinnea, 318
S.W.3d 867, 880 (Tex. 2010). Under those rules, an appellant’s brief must concisely state all
issues or points presented for review and, among other things, “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). The appellate court has no duty to brief issues for an appellant.
Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 783 (Tex. App.—Dallas 2013, no pet.). In the
absence of appropriate record citations or a substantive analysis, a brief does not present an
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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).
On appeal, as in trial, a pro se appellant must properly present his case. See Strange v.
Continental Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied). Although
we liberally construe pro se briefs, litigants who represent themselves are required to comply
with applicable rules and 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); In re N.E.B., 251 S.W.3d
211, 211–12 (Tex. App.—Dallas 2008, no pet.). To hold otherwise would give pro se litigants
an unfair advantage over litigants with an attorney. In re N.E.B., 251 S.W.3d at 212.
Cruz’s appellate brief is four pages. The “Statement of the Case” portion of the brief
contains no supporting references to the record. See TEX. R. APP. P. 38.1(d). There is no
“Statement of Facts.” See TEX. R. APP. P. 38.1(g). In his “Issues Presented For Appeal” section,
Cruz does not concisely state the issues he presents for review. See TEX. R. APP. P. 38.1(f).
Instead, Cruz provides a confusing narrative, claiming he was “wrongfully foreclosed on and
evicted” by Deutche Bank. Cruz complains of misrepresentations by an individual named
Antonio Caballero who allegedly claimed to be a loan modification officer; however, Antonio
Caballero is not a party to this lawsuit. Finally, Cruz suggests that a judgment awarding
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possession of the Property to Deutche Bank was erroneous because he thought he was working
on a loan modification prior to the wrongful foreclosure sale.
The “Argument” section of Cruz’s brief provides no discussion or legal analysis of the
issues he purports to present and contains no citations to legal authorities or the record. See TEX.
R. APP. P. 38.1(i). Instead, Cruz merely restates the narrative provided in his issues and
statement of the case and argues his appeal should be granted because he was confused and did
not understand the legal action taken against him. We may not speculate as to the substance of
the specific issues asserted by an appellant and may not make a party’s argument for him.
Strange, 126 S.W.3d at 678. We have no duty to perform an independent review of the record
and the applicable law to determine if the trial court erred. Id.
Cruz has the burden to present and discuss his assertions of error in compliance with the
appellate briefing rules. See TEX. R. APP. P. 38.1. Because Cruz has failed to adequately brief
any issue for review by this court, even after being notified of the deficiencies in his appellate
brief, we hold that the issues he purports to raise have not been preserved for our review. See
Strange, 126 S.W.3d at 678. Accordingly, we overrule Cruz’s issues.
CONCLUSION
Having overruled appellant’s issues, we affirm the trial court's judgment.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
141358F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JUAN CRUZ, Appellant On Appeal from the County Court at Law
No. 3, Dallas County, Texas
No. 05-14-01358-CV V. Trial Court Cause No. CC-14-04351-C.
Opinion delivered by Chief Justice Wright.
DEUTCHE BANK NATIONAL TRUST, Justices Fillmore and Brown participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee DEUTCHE BANK NATIONAL TRUST recover its costs
of this appeal from appellant JUAN CRUZ.
Judgment entered October 18, 2016.
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