Rudy Neira v. Sheryl Scully ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00687-CV
Rudy NEIRA,
Appellant
v.
Sheryl SCULLY, In Her Official Capacity as the City Manager of the City of San Antonio, on
Behalf of the San Antonio Planning Commission,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-05034
Honorable John D. Gabriel Jr., Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: July 22, 2015
AFFIRMED
This is an appeal from a trial court’s order granting summary judgment in favor of appellee
Sheryl Scully, In Her Official Capacity as the City Manager of the City of San Antonio, on Behalf
of the San Antonio Planning Commission. On appeal, appellant Rudy Neira contends the trial
court erred in granting summary judgment in favor of Scully because there is a “real and substantial
controversy that can be settled by declaratory judgment.” We affirm the trial court’s judgment.
04-14-00687-CV
BACKGROUND
An individual named Richard Hovenden purchased a one-acre lot in San Antonio. 1 After
the purchase, Mr. Hovenden filed an application with the City of San Antonio’s Planning
Commission (“the Commission”), seeking to replat the one-acre lot into three individual lots. 2 A
hearing was scheduled on Mr. Hovenden’s application, and Neira, who owns a portion of a platted
lot contiguous with the property in question, received notice of Mr. Hovenden’s application and
the date of the hearing. Neira admitted he did not attend the hearing. After the hearing, the
Commission unanimously approved Mr. Hovenden’s application.
Neira believed the division of the one acre lot “would divert storm water and cause damage
to Mr. Neira and to neighbors.” Neira also believed the Commission’s decision to replat the one-
acre lot was invalid. Neira filed a petition for declaratory judgment pursuant to Chapter 37 of the
Texas Civil Practice and Remedies Code, asking the trial court to declare that the replat invalid
because: (1) it violated the Texas Local Government Code; (2) it violated the Texas Property Code;
(3) it violated particular deed restrictions; and (4) the City acted in an unreasonable and arbitrary
manner. 3 Neira’s claims of invalidity appear to be based on his interpretation of section 35-
515(h)(1) of the City of San Antonio’s Unified Development Code, which governs the
authorization of flag lots. See San Antonio, Tex., Unified Development Code § 35.515(h)(1)
(2006). In response, Scully filed an answer and thereafter, a motion for summary judgment. Neira
filed a response to Scully’s motion for summary judgment and requested summary judgment on
his own behalf.
1
Technically, the lot was just over one-acre, but that is irrelevant to the substance of the matter.
2
According to Scully’s summary judgment evidence, the lot in question was originally three lots in 1940. In 1959,
the lot was replatted into a single, one-acre lot.
3
In his summary judgment response, Neira specifically stated he was withdrawing (2) and (3) from consideration by
the court.
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After a hearing, the trial court granted Scully’s motion for summary judgment and denied
the motion filed by Neira. Neira then perfected this appeal.
ANALYSIS
Before addressing the merits, we must first determine whether Neira has presented
anything for our review. It is well-settled that an appellant’s brief must contain clear and concise
arguments with appropriate citations to authorities and the record. See, e.g., In re Estate of Aguilar,
No. 04-13-00038-CV, 2014 WL 667516, at *8 (Tex. App.—San Antonio Feb. 19, 2014, pet.
denied) (mem. op.); Keyes Helium Co. v. Regency Gas. Servs., L.P., 393 S.W.3d 858, 861–62
(Tex. App.—Dallas 2012, no pet.); Niera v. Frost Nat’l Bank, No. 04-09-00224-CV, 2010 WL
816191, at *3 (Tex. App.—San Antonio Mar. 10, 2010, pet. denied) (mem. op.); WorldPeace v.
Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied); Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489 (Tex. App.—Fort Worth
2004, no pet.); see also TEX. R. APP. P. 38.1(i). As stated by the supreme court in 2012, “[t]he
Texas Rules of Appellate Procedure require adequate briefing.” ERI Consulting Eng’rs, Inc. v.
Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Moreover, we have no duty to properly brief the
issues for the appellant, or to sift through the record in search of facts supporting a party’s position.
Torres v. Garcia, No. 04–11–00822–CV, 2012 WL 3808593, at *4 (Tex. App.—San Antonio Aug.
31, 2012, no pet.) (mem. op.); Rubsamen v. Wackman, 322 S.W.3d 745, 746 (Tex. App.—El Paso
2010, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). In other
words, it is the appellant’s burden “to discuss [his] assertions of error, and we have no duty—or
even right—to perform an independent review of the record and applicable law to determine
whether there was error.” Rubsamen, 322 S.W.3d at 746. The failure to cite applicable authority
or provide substantive analysis waives an issue on appeal, as does the failure to provide citations
to relevant portions of the appellate record. See, e.g., Keyes Helium Co., 393 S.W.3d 861–62
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(holding that failure to cite to relevant portions of record waives appellate review); Huey, 200
S.W.3d at 854 (holding that failure to cite applicable authority or provide substantive analysis
waives issue on appeal); Niera, 2010 WL 816191, at *3 (holding that failure to provide appropriate
citations or substantive analysis waived appellate issues); WorldPeace, 183 S.W.3d at 460 (holding
that failure to offer argument, citations to record, or authority waives appellate review); Citizens
Nat’l Bank, 142 S.W.3d at 489–90 (holding that appellant waived jury charge error by failing to
include proper citation to record); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex.1994) (holding appellate court may use its discretion to find issues waived
due to inadequate briefing).
We recognize Neira is pro se on appeal, i.e., he is representing himself. However, pro se
litigants are generally held to the same standards as licensed attorneys and must comply with all
applicable rules, including the rules governing appellate briefs. E.g., Serrano v. Pellicano Park,
L.L.C., 441 S.W.3d 517, 520 (Tex. App.—El Paso 2014, pet. dism’d w.o.j.); Kindle v. United
Servs. Auto. Ass’n, 357 S.W.3d 377, 380 (Tex. App.—Texarkana 2011, pet. denied); Decker v.
Dunbar, 200 S.W.3d 807, 809 (Tex. App.—Texarkana 2006, pet. denied); Strange v. Cont’l Cas.
Co., 126 S.W.3d 676, 677–78 (Tex. App.—Dallas 2004, pet. denied). As the supreme court stated
in Mansfield State Bank v. Cohn:
There cannot be two sets of procedural rules, one for litigants with counsel and the
other for litigants representing themselves. Litigants who represent themselves
must comply with the applicable procedures rules, or else they would be given an
unfair advantage over litigants represented by counsel.
573 S.W.2d 181, 184–85 (Tex. 1978); see Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005)
(stating the pro se litigants are not exempt from rules of procedure and that “[h]aving two sets of
rules—a strict set for attorneys and a lenient set for pro se parties—might encourage litigants to
discard their valuable right to the advice and assistance of counsel).
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Neira’s brief is deficient. First, his brief does not include a single citation to the appellate
record. The record consists of a clerk’s record of more than three hundred pages. Although Neira
refers to documents in the clerk’s record, he does not provide to this court with a citation to the
place in the record where the documents can be found. As Neira himself points out, his own reply
consists of six pages and a twenty-page attachment.
Second, Neira includes in his brief a single citation to authority — Potter v. Clear Channel
Outdoor, Inc., No. 01-07-00578-CV, 2009 WL 1886168 (Tex. App.—Houston [1st Dist.] July 2,
2009, no pet.) (mem. op). Although the cited case involves a motion for summary judgment in a
declaratory judgment action, this is where the similarity ends. The appeal brought by Neira
concerns declarations relevant to the interpretation of a city ordinance as it relates to the replatting
of real property. Potter, on the other hand, has nothing to do with replatting or city ordinances.
Id. at *1. Rather, it concerns a declaration regarding the proper interpretation of ground leases for
billboard use. Id. The only proposition for which Neira cites Potter is that in the event this court
agrees with him, we should remand the matter for another hearing before the Commission. He
does not cite any other authority.
Finally, Neira wholly fails to present an actual substantive argument in his brief. Rather,
he provides conclusory statements to the effect that he believes section 35-515(h)(1) of the Unified
Development Code has a certain meaning, which renders Scully’s, i.e., the Commission’s,
replatting decision erroneous, whereas Scully, i.e., the Commission, believes the same ordinance
has another meaning, which renders the Commission’s decision correct. Neira provides no
argument regarding the substance of the ordinance, no argument as to what his interpretation is as
opposed to the Commission’s, or why his interpretation should prevail over that of the
Commission. Neira simply contends that because his interpretation is different from that of the
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Commission’s, summary judgment was improper. This alone does not constitute a proper legal
argument.
As reflected in the foregoing description, we hold the brief fails to meet the basic
requirements of the briefing rules set out in Rule 38.1 of the Texas Rules of Appellate Procedure.
See TEX. R. APP. P. 38.1. The brief fails to provide a single citation to the clerk’s record—which
is over three hundred pages long, fails to provide any authority—other than a single citation to a
case that involves interpretation of a ground lease, and further fails to provide an actual,
appropriate legal argument for the relief sought. Because Neira has failed to provide any citations
to the record, cite applicable authority, or provide substantive analysis for his contentions, we hold
he has presented nothing for our review. See Huey, 200 S.W .3d at 854.
Moreover, even if Neira had properly briefed this matter, we would nevertheless affirm the
trial court’s summary judgment in favor of Scully. In her motion for summary judgment, Scully
set out numerous grounds in support of her motion, and in its summary judgment order, the trial
court did not specify upon which grounds the motion was granted. When a party moves for
summary judgment on multiple grounds and the trial court’s summary judgment order does not
specify the ground or grounds upon which judgment was granted, an appealing party must negate
all possible grounds upon which summary judgment could have been rendered by either asserting
a separate issue challenging each possible ground or asserting a Malooly point and providing
argument upon each possible ground. Ramirez v. First Liberty Ins. Corp., 458 S.W.3d 568, 571–
72 (Tex. App.—El Paso 2014, no pet.); Woodhaven Partners, Ltd. v. Shamoun & Nourman, L.L.P.,
422 S.W.3d 821, 831 (Tex. App.—Dallas 2014, no pet.); Jarvis v. Rocanville Corp., 298 S.W.3d
305, 313 (Tex. App.—Dallas 2009, pet. denied); see Malooly Bros., Inc. v. Napier, 461 S.W.2d
119, 121 (Tex. 1970). If an appellant fails to challenge each possible ground upon which summary
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judgment could have been granted, we must uphold the summary judgment. Ramirez, 458 S.W.3d
at 571–72; Woodhaven Partners, Ltd., 422 S.W.3d at 831; Jarvis, 298 S.W.3d at 313.
In her motion for summary judgment, Scully raises multiple grounds for summary
judgment. However, Neira challenges only those grounds relating to the actual interpretation of
the section 35-515(h)(1) of the Unified Development Code, ignoring Scully’s grounds relating to:
(1) the contention that any declaration against Scully alone, as an ex officio member of the
Commission, would be insufficient to resolve this matter; (2) Neira’s failure to join all persons
who might be affected by the judgment; (3) Neira’s lack of standing; and (4) Neira’s failure to
preserve a legal challenge to the Commission’s ruling. Even under the most liberal interpretation
of Neira’s brief, we hold he has not raised issues challenging each ground upon which summary
judgment could have been granted nor raised a Malooly point supported by argument on each
specific ground. We must, therefore, uphold the summary judgment in favor of Scully. See
Ramirez, 458 S.W.3d at 571–72; Woodhaven Partners, Ltd., 422 S.W.3d at 831; Jarvis, 298
S.W.3d at 313.
CONCLUSION
Based on the foregoing analysis, we hold Neira has waived his appellate complaints due to
inadequate briefing. Additionally, even if Neira has properly briefed his appeal, we would affirm
the trial court’s summary judgment in favor of Scully because Neira failed to negate all possible
grounds upon which summary judgment could have been granted. Accordingly, we affirm the
summary judgment.
Marialyn Barnard, Justice
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