Richard Manning, Tammy Manning, and All Occupants of 1036 Sunset, Waco, TX 76704 v. Mae Johnson and Pat Williams ( 2021 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00010-CV
RICHARD MANNING, TAMMY MANNING, AND
ALL OCCUPANTS OF 1036 SUNSET, WACO, TX 76704, Appellants
V.
MAE JOHNSON AND PAT WILLIAMS, Appellees
On Appeal from the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 20200238CV2
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
Richard Manning appeals a forcible entry and detainer judgment in favor of his landlords,
Mae Johnson and Pat Williams.1 On appeal, Manning, appearing pro se, argues that (1) the trial
court erred by failing to set aside its final judgment under Craddock v. Sunshine Bus Lines2
because Manning did not have notice of a final hearing, (2) the trial court erred by imposing
attorney fees as a sanction under Chapter 10 of the Texas Civil Practice and Remedies Code, (3)
the trial court’s judgment was not supported by legally and factually sufficient evidence, and (4)
the trial court erred by granting a continuance after it had granted a writ of possession.
We find that we lack jurisdiction to address the issue of possession in this case. Even so,
we address the issue of past due rent and attorney fees but conclude that (1) the trial court did not
abuse its discretion in overruling Manning’s request for a new trial on those issues based on
Craddock, (2) the trial court did not abuse its discretion in finding that the imposition of attorney
fees was a proper sanction, and (3) Manning has failed to adequately brief his remaining issues.
As a result, we affirm the award of past due rent and attorney fees.
I. Factual and Procedural Background
Manning leased a property located at 1036 Sunset in Waco, Texas (the Property), from
Johnson and Williams. The record shows that Johnson and Williams sent Manning notice in
November 2019 that his monthly lease payment would increase from $850.00 to $1,075.00
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
2
per month. In February 2020, Johnson and Williams filed a petition to evict Manning and all
occupants of the Property for failure to pay rent. Although the record shows that Manning, who
represented himself, was personally served and acknowledged this service in later motions, he
did not appear for trial in front of the justice court. As a result, the justice court entered a default
judgment in favor of Johnson and Williams on February 18, which awarded them possession of
the Property, past due rent, and court costs. After Manning acknowledged that the justice court
had also required him to deposit past due rent and rent accrued during any appeal into its
registry, he appealed the justice court’s decision for trial de novo in the County Court at Law
No. 2 of McLennan County (County Court). Manning chose to represent himself in front of the
County Court.
Manning originally received notice that the eviction appeal hearing was set for April 17,
2020. After receiving the notice, Manning argued that he should have only been charged
$850.00 per month, not $1,075.00 per month, and filed a motion for reconsideration of the
amount of rent that was to be paid in the justice court’s registry. On that motion, and throughout
the proceedings, Manning listed the Property address as his address.3
Even though the County Court had not ruled on his motion, Manning deposited $850.00
or less for several months into the registry. On July 15, Johnson and Williams filed a verified
motion arguing that the justice court’s writ of possession should no longer be stayed pending the
appeal because Manning had failed to continue to deposit the full amount of rent into the registry
as required by Section 24.0054 of the Texas Property Code, which states, in relevant part:
3
Manning filed letters and pleadings on June 1, July 30, and August 3 with the County Court listing the Property as
his address.
3
(a-4) During an appeal of an eviction case for nonpayment of rent, if a
tenant fails to pay rent into the justice court or county court registry as the rent
becomes due under the rental agreement in accordance with the Texas Rules of
Civil Procedure and Section 24.0053, the landlord may file with the county court
a sworn motion that the tenant failed to pay rent as required. . . .
....
(c) If the court finds that a tenant has failed to timely pay the rent into
the court registry on more than one occasion:
(1) the tenant is not entitled to stay the issuance of the
writ by paying the rent and the landlord’s reasonable attorney’s
fees, if any; and
(2) the county court shall immediately issue a writ of
possession.
TEX. PROP. CODE ANN. § 24.0054(a-4), (c).
On July 31, Manning moved to recuse the judge and stay the proceedings and filed a
motion to dismiss his own appeal for want of jurisdiction. In response, Johnson and Williams
argued that the recusal motion was untimely and groundless and moved for sanctions in the form
of attorney fees and incurred expenses. The recusal motion was overruled.
Johnson and Williams also filed a motion for continuance due to Manning’s recusal
motion, which delayed the consideration of their pretrial motions. Johnson and Williams
explained that they wished for the County Court to rule on their motion for a writ of possession
under Section 24.0054 of the Texas Property Code first because they would likely elect not to
have Johnson, who lived in California, travel for the final hearing if the motion were granted.
The County Court granted the motion for continuance on August 5 but did not set the case for
final hearing at that time.
4
On August 7, 2020, the County Court held a hearing in which Manning admitted to
making lesser payments than ordered by the justice court for several months. Johnson and
Williams testified on the issue of attorney fees under Section 24.0054 with respect to that
motion. After reviewing the registry, the County Court concluded that the amount of the
deficiency of unpaid rent was $1,120.40. By written order on August 11, the County Court
found that Manning had failed to deposit into the registry the amount of rent as ordered by the
justice court on a timely basis on more than one occasion and issued a writ of possession in favor
of Johnson and Williams. The County Court also ordered Manning to pay Johnson and
Williams’s attorney fees related to the Section 24.0054 motion. The writ of possession was
executed on August 19, 2020, and Manning vacated the Property.
On September 3, 2020, Manning moved to set aside the order issuing a writ of possession
because of the “grammatical complexity” of Section 24.0054 of the Texas Property Code.
Although he acknowledged attendance at the hearing, he mislabeled the order issuing writ of
possession as a default judgment. To that motion, Manning attached an unsworn declaration
listing the Property address as his address and included his email address.
On September 30, 2020, Johnson and Williams filed a motion for sanctions for
reasonable expenses and attorney fees under Section 10.002 of the Texas Civil Practice and
Remedies Code for alleged inconvenience, harassment, and out-of-pocket expenses incurred or
caused by the litigation and by two appeals filed with the Tenth Court of Appeals that were
dismissed based on the lack of a final appealable order.
5
Even though the issue of possession was already decided, the final hearing, which had
been rescheduled several times due to the COVID-19 pandemic, was ultimately set for
October 2, 2020. On September 16, the County Court mailed to the Property Manning’s notice
of the final hearing. The record shows that the county administrator and Johnson and Williams’s
counsel also emailed this notice to Manning on the same day.
Manning did not appear for the final hearing. At that hearing, the County Court noted
that the written notice of the hearing date had been returned as undeliverable and that Manning
had failed to provide an updated address. Johnson and Williams’s counsel informed the County
Court that he had sent notice of the hearing to Manning’s email address. The County Court
found that Manning had received proper notice of the hearing.
At the final hearing, Williams testified that the lease on the Property was executed in
January 2017, that it was a twelve-month lease obligating Manning to pay $850.00 per month,
and that Manning remained on the Property on a month-to-month basis after the written lease
term expired. Williams said that he notified Manning of an increase in rent to $1,075.00 per
month in a November 2019 letter, which he both hand delivered to Manning and sent by certified
mail. The original lease and notification of increased rent was introduced into evidence.
Williams testified that Manning only paid $850.00 in January and February of 2020 even though
the rent had increased. As a result, Williams testified that Manning was sent notices to vacate
the property before the forcible entry and detainer proceeding was filed with the justice court.
Williams also testified that Manning used the Property for commercial purposes, including
manufacturing and selling sheds.
6
After Williams testified, the County Court noticed that he had not yet been sworn. At
that time, the County Court administered the oath to Williams and, after being properly sworn,
Williams testified that his prior testimony was “true and correct” and accurate. Johnson and
Williams’s counsel testified that he had spent twenty-two hours of time on the case, charging
$195.00 an hour, and that the total amount of attorney fees spent on the case was $4,290.00.
Counsel also asked for $3,500.00 in the event of an appeal to the court of appeals and another
$3,500.00 in the event of an appeal to the Texas Supreme Court.
On October 5, the County Court entered a judgment awarding Johnson and Williams
possession of the Property, $3,340.40 for unpaid rent, and attorney fees in the amount of
$11,290.00, which included $7,000.00 in conditional awards of appellate attorney fees that
would be remitted if the judgment were not appealed. The judgment included an express finding
that the Property was used “for both residential and business purposes.” Nothing in the judgment
suggested that the attorney-fee award was a sanction.
Manning moved to set aside the default judgment on the ground that he was not provided
with the notice that was mailed to the Property address. Manning’s original and first amended
motions did not expressly address whether he had received the notice of the hearing that was
emailed by the court administrator even though Manning listed that email in his motions to set
aside the default judgment. Manning also complained that the amounts awarded to Johnson and
7
Williams for unpaid rent and attorney fees were “inaccurate, unreasonable[,] and excessive.”
Manning lodged no complaint about the imposition of attorney fees as sanctions.4
The County Court set the motions to set aside its judgment for a hearing in January 2021.
At that hearing, counsel attached a September 16, 2020, email from the court administrator to
Manning’s email address, which attached notice of the final hearing. Counsel also separately
forwarded that message to Manning’s email address, as shown by the email chain admitted into
evidence, and Manning confirmed that the email address used in the email was his. The County
Court denied Manning’s motions.
II. We Lack Jurisdiction to Address the Issue of Possession
We first highlight the parameters of our jurisdiction. The trial court found that Manning
was using the Property for residential and commercial purposes. That finding was not
challenged by motion for new trial or on appeal. Section 24.007 of the Texas Property Code
states, “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.” TEX.
PROP. CODE ANN. § 24.007 (Supp.). As a result, we do not have jurisdiction over this appeal as
it relates to issues of possession. See In re High Pointe Invs., LLC, 552 S.W.3d 384, 388 (Tex.
4
“[A]n amended motion for new trial filed more than thirty days after the trial court signs a final judgment is
untimely.” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). In an untimely third motion to set aside the
judgment, Manning mentioned sanctions for the first time and included claimed meritorious defenses, like
“Landlord did not terminate tenancy properly,” “Landlord has not properly brought the case,” “Bad housing
conditions,” “Retaliatory Eviction,” “Landlord violated the law Texas Property Code 24.0052,” and “Attorney’s fees
not part of suit.” “A trial court’s order overruling an untimely new trial motion cannot be the basis of appellate
review, even if the trial court acts within its plenary power period.” Id. “[I]f the court denies a new trial, the belated
motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set
forth in a timely motion,” id. (quoting Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex. App.—Austin 1992, no pet.)
(per curiam)); “it is a nullity for purposes of preserving issues for appellate review.” Id.8
App.—Waco 2018, orig. proceeding); Rice v. Pinney, 51 S.W.3d 705, 707–08 (Tex. App.—
Dallas 2001, no pet.).
To the extent Manning argues that Craddock should be applied to issues of possession,
we find that Manning was present at the August 7, 2020, hearing after which the trial court
granted a writ of possession in favor of Johnson and Williams. As a result, Manning vacated the
Property before the final hearing, and his presence at the final hearing was not required on the
issue of possession because it had already been decided. See Marshall v. Hous. Auth. of City of
San Antonio, 198 S.W.3d 782, 787 (Tex. 2006); Holmes v. Al Jaafreh, No. 10-11-00320-CV,
2013 WL 2399059, at *1 (Tex. App.—Waco May 30, 2013, no pet.) (mem. op.); McElroy v.
Teague Hous. Auth., No. 10-10-00009-CV, 2012 WL 149227, at *1–2 (Tex. App.—Waco
Jan. 18, 2012, no pet.) (mem. op.); De La Garza v. Riverstone Apartments, No. 04-06-00732-CV,
2007 WL 3270769, at *1 (Tex. App.—San Antonio Nov. 7, 2007, no pet.) (mem. op.).
We dismiss all arguments made by Manning that relate to the issue of possession of the
Property.
III. Denying Manning’s Motion for New Trial Based on Craddock Was Not an Abuse of
Discretion
We next address Manning’s complaints related to the trial court’s denial of a new trial on
the issue of past due rent and attorney fees. “We review a trial court’s decision to deny a motion
for new trial under an abuse[-]of-discretion standard.” In re Marriage of Landry, No. 10-13-
00293-CV, 2014 WL 1775501, at *1 (Tex. App.—Waco Apr. 10, 2014, no pet.) (mem. op.)
(citing Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010)). “A trial court abuses
its discretion when it acts ‘“without reference to any guiding rules or principles” or, stated
9
another way, when the trial court acts in an arbitrary and unreasonable manner.’” Id. (quoting
City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985))).
“A trial court must set aside a post-answer default judgment when the defendant satisfies
the test articulated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124(1939).” Id. “Under Craddock, the defendant must demonstrate that (1) his failure to appear
was not intentional or the result of conscious indifference; (2) there is a meritorious defense; and
(3) the granting of a new trial will not operate to cause delay or injury to the opposing party.” Id.“However, when the defendant did not receive actual or constructive notice of trial, he
has met the first prong of Craddock, and due process prevents the application of the second and
third prongs of the Craddock test.” In re T.J.T., 486 S.W.3d 675, 680 (Tex. App.—Texarkana
2016, no pet.) (quoting Kuykendall v. Beverly, 436 S.W.3d 809, 814 (Tex. App.—Texarkana
2014, no pet.)). While we assume that Manning did not receive actual notice of the October 2
hearing, “[a]ctual notice is not the standard for determining whether due process had been
afforded” because “[d]ue process requires only that the notice given be reasonably calculated
under the circumstances to apprise the party of the trial date.” Broadway v. Boldes, No. 05-00-
00824-CV, 2001 WL 1289466, at *2 (Tex. App.—Dallas Oct. 25, 2001, no pet.) (not designated
for publication) (citing Withrow v. Schou, 13 S.W.3d 37, 40 (Tex. App.—Houston [14th Dist.]
1999, pet. denied)). “Such notice may be considered constructive notice.” Id.“[P]arties have a continuing obligation under [R]ule 21a of the Texas Rules of Civil
Procedure to keep the court and the other parties apprised of a correct and current address where
10
they may be reached[,] and this obligation cannot be shifted to the court clerk or to an opposing
party.” Id. at *3 (citing Withrow, 13 S.W.3d at 41). “Texas courts have held that a party that
does nothing to protect its due process rights with respect to notice of a trial setting should not
complain on appeal that those rights have been violated.” Id. Here, the record showed that the
Property address was the only mailing address Manning had provided to the County Court and
opposing counsel. Manning was aware that the case was continued and would be scheduled for a
final hearing. Even so, he did not update his address with the County Court or make any
inquiries about a final setting. As a result, we decline to find that the County Court abused its
discretion in concluding that Manning’s “failure to update [his] address in the court’s records or
to make inquiries regarding the new trial setting demonstrated that [the] failure to appear at trial
was the result of conscious indifference rather than mistake or accident.” Id.Also, Rule 57 of the Texas Rules of Civil Procedure states, “A party not represented by
an attorney shall sign his pleadings, state his address, telephone number, email address, and, if
available, fax number.” TEX. R. CIV. P. 57 (emphasis added). Manning listed the Property
address and his email address on pleadings. Rule 21a of the Texas Rules of Civil Procedure
states:
(a) Methods of Service. Every notice required by these rules, and
every pleading, plea, motion, or other form of request required to be served under
Rule 21, other than the citation to be served upon the filing of a cause of action
and except as otherwise expressly provided in these rules, may be served by
delivering a copy to the party to be served, or the party’s duly authorized agent or
attorney of record in the manner specified below:
(1) Documents Filed Electronically. A document filed electronically
under Rule 21 must be served electronically through the electronic filing
manager if the email address of the party or attorney to be served is on file
11
with the electronic filing manager. If the email address of the party or
attorney to be served is not on file with the electronic filing manager, the
document may be served on that party or attorney under subparagraph (2).
(2) Documents Not Filed Electronically. A document not filed
electronically may be served in person, [by] mail, by commercial delivery
service, by fax, by email, or by such other manner as the court in its
discretion may direct.
TEX. R. CIV. P. 21a.
The record shows that Manning’s email address was not on file with the electronic filing
manager. As a result, “Rule 21a allowed the Notice [of trial setting] to be served by any of the
means listed in Rule 21a(a)(2), including by mail or by email.” Brandon v. Rudisel, 586 S.W.3d
94, 102 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (citing TEX. R. CIV. P. 21a(a)); see
Johnson v. Harris Cty., 610 S.W.3d 591, 595 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
“[E]lectronic service is ‘complete on transmission of the document to the serving party’s
electronic filing service provider.’” Brandon, 586 S.W.3d at 102 (quoting TEX. R. CIV. P.
21a(b)(3)). The record showed that Johnson and Williams’s counsel and the court administrator
emailed the notice of final hearing to Manning’s email address listed in his pleadings. At the
final hearing, Manning admitted that the email address to which the notice was emailed was his
and that he used it during the pertinent time. As a result, we cannot conclude that the trial
court’s finding that Manning received constructive notice was an abuse of discretion. See id.;
Johnson, 610 S.W.3d at 595–96.
12
IV. The Trial Court Did Not Abuse Its Discretion in Finding that the Imposition of
Attorney Fees Was a Proper Sanction
Next, Manning argues that the trial court erred by awarding attorney fees as sanctions
under Chapter 10 of the Texas Civil Practice and Remedies Code, for several reasons.5 We
disagree.
Manning argues that the trial court’s order to pay attorney fees as sanctions failed to
adequately describe, with sufficient particularity, the conduct that the trial court claimed was
committed. Under the precedent of the Waco Court of Appeals, this issue has not been preserved
for review because Manning did not raise it below, even in his timely motions for new trial.
Windsor v. Round, 591 S.W.3d 654, 673 (Tex. App.—Waco 2019, pet. denied). He also
complains that he did not have an opportunity to be heard on the issue, but the record reflects
that Manning was present for the August 7 hearing that considered Johnson and Williams’s
motion for sanctions, and Manning also presented the issue at the motion for new trial hearing.
The only timely complaint before the trial court on the issue of sanctions was Manning’s
complaint that they were “inaccurate, unreasonable[,] and excessive.” “We review the
imposition of sanctions under Chapter 10 of the Texas Civil Practice and Remedies Code . . . for
an abuse of discretion.” Cox v. Vanderburg, No. 06-20-00078-CV, 2021 WL 4055487, at *10
5
Although Johnson and Williams filed a Chapter 10 sanctions motion, they argue that nothing in the record indicates
that the trial court awarded attorney fees on that basis. We disagree. Attorney fees are not generally available in
eviction cases. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Supp.). Under Chapter 24 of the Texas Property
Code, attorney fees in an eviction case that are unrelated to Section 24.0054 motions are only available if, among
other things, the landlord’s written demand to vacate the premises or a written lease warns the tenant that the
landlord will seek attorney fees in suit for forcible entry and detainer. See TEX. PROP. CODE ANN. § 24.006; Tillman
v. Lake Pointe Owners Grp., Inc., No. 07-19-00385-CV, 2020 WL 6253238, at *5 (Tex. App.—Amarillo Oct. 22,
2020, no pet.) (mem. op.). Because attorney fees were not statutorily authorized, we must presume that they were
awarded as Chapter 10 sanctions.
13
(Tex. App.—Texarkana Sept. 7, 2021, pet. filed) (mem. op.) (quoting Dike v. Peltier Chevrolet,
Inc., 343 S.W.3d 179, 183 (Tex. App.—Texarkana 2011, no pet.) (citing Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004))). “Under
this standard, courts view the evidence in the light most favorable to, and indulge every
presumption in favor of, the trial court’s action.” Id. (quoting Dike, 343 S.W.3d at 183 (citing In
re Liu, 290 S.W.3d 515, 519 (Tex. App.—Texarkana 2009, orig. proceeding)). “An appellate
court may reverse the trial court’s ruling only if the trial court acted without reference to any
guiding rules and principles, such that its ruling was arbitrary or unreasonable.” Id. (quoting
Dike, 343 S.W.3d at 183 (quoting Low, 221 S.W.3d at 614)). “A trial court abuses its discretion
in awarding sanctions only if the order is based on an erroneous assessment of the evidence or
the law.” Id. (quoting Dike, 343 S.W.3d at 183).
“Chapter 10 provides for an award of sanctions when a party shows . . . that the pleading
or motion was brought for an improper purpose.” Id. (quoting Mobley v. Mobley, 506 S.W.3d
87, 95 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 10.001; Low, 221 S.W.3d at 614–15)). “An improper purpose includes ‘to harass or to cause
unnecessary delay or needless increase in the cost of litigation.’” Id. (quoting TEX. CIV. PRAC. &
REM. CODE ANN. § 10.001(1)). “Chapter 10 specifies that one of the aims for imposition of
sanctions for the filing of frivolous or groundless pleadings is to ‘deter repetition of the conduct
or comparable conduct by others similarly situated.’” Id. (quoting Mobley, 506 S.W.3d at 95
(quoting TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(b))). “We construe the phrase ‘improper
purpose’ as the equivalent of ‘bad faith’ under Rule 13.” Id. (quoting Mobley, 506 S.W.3d at 95
14
(quoting Dike, 343 S.W.3d at 183–84)). “Each factual contention must have or be likely to
receive evidentiary support after a reasonable opportunity for discovery.” Pressley v. Casar, 567
S.W.3d 327, 333 (Tex. 2019) (per curiam).
“‘[I]mposition of sanctions is just’ when (1) there is a ‘direct relationship . . . between the
offensive conduct and the sanction imposed’ and (2) the sanctions are not excessive, i.e., ‘[t]he
punishment . . . fit[s] the crime.’” Cox, 2021 WL 4055487, at *10 (quoting TransAm. Nat. Gas
Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)). “In determining whether sanctions are
appropriate, the trial court must examine the facts available to the litigant and the circumstances
existing when the litigant filed the pleading.” Id. (quoting Dike, 343 S.W.3d at 184). Typically,
“[t]he party seeking sanctions has the burden of showing its right to relief.” Id. (quoting Dike,
343 S.W.3d at 184). However, the Waco Court of Appeals has said that, “[i]f the trial court
assesses sanctions . . . and the party upon whom sanctions have been assessed files a motion for
new trial, the party upon whom sanctions have been assessed has the burden to show entitlement
to the requested relief.” Beddingfield v. Beddingfield, No. 10-15-00344-CV, 2018 WL 6378553,
at *19 (Tex. App.—Waco Dec. 5, 2018, pet. denied) (mem. op.) (citing Cocke v. Saks, 776
S.W.2d 788, 790 (Tex. App.—Corpus Christi 1989, writ denied)). Also, because the trial court
did not issue findings of fact and conclusions of law, “the trial court’s judgment implies all
findings of fact necessary to support it.” Est. of Hines, No. 06-20-00007-CV, 2020 WL
5948803, at *5 n.14 (Tex. App.—Texarkana Oct. 8, 2020, no pet.) (mem. op.) (citing Pharo v.
Chambers Cty., Tex., 922 S.W.2d 945, 948 (Tex. 1996)); Avila v. Lone Star Radiology, 183
S.W.3d 814, 822 (Tex. App.—Waco 2005, no pet.).
15
Here, Manning consistently argued that he should not have been charged $1,075.00 per
month in rent, without presenting any evidence to support his position despite having ample
opportunity to do so, including at the August 7 hearing when the issue of possession was
decided. A review of Manning’s pleadings could have led the County Court to conclude that he
had no meritorious defense to the forcible entry and detainer suit. The County Court here
expressly found that Manning violated the justice court’s order to pay rent of $1,075.00 per
month while the case was pending on appeal. In addition to violating that order, Manning filed
several frivolous pleadings, including a motion to dismiss his own suit for want of jurisdiction.
The County Court could have found that Manning’s recusal motion was groundless, as was his
objection to Johnson and Williams’s motion for continuance. Manning also filed two
interlocutory appeals that were dismissed by the Waco Court of Appeals for lack of jurisdiction.
Johnson and Williams alleged, and the County Court could have found, that Manning’s motions
and arguments were made solely for the purpose of delaying the proceedings and increasing
Johnson and Williams’s costs of litigation. No meritorious defense was raised in the hearing on
Manning’s timely motions for new trial. That, coupled with the written lease, notice of increased
rent, and notice to vacate the Property, could have ultimately led the County Court to conclude
that the appeal from the justice court was frivolous and groundless and that a new trial on the
issue of sanctions was unwarranted. As a result, we do not find that the County Court abused its
discretion in overruling Manning’s motion for new trial complaining of the imposition of
sanctions. We also find no abuse of discretion in the trial court’s finding that there was a direct
relationship between the filing of groundless and frivolous pleadings made for the purposes of
16
delay and increased litigation cost and the sanction of attorney fees expended by Johnson and
Williams to defend those pleadings.
As for the excessiveness of sanctions, Manning argues for the first time on appeal that the
trial court should have considered a lesser sanction. Because he did not raise this complaint to
the County Count, this issue is unpreserved. See Cox, 2021 WL 4055487, at *13 (citing TEX. R.
APP. P. 33.1; Sanchez v. Fiedler, No. 03-14-00182-CV, 2016 WL 4272111, at *9 (Tex. App.—
Austin Aug. 11, 2016, pet. denied) (mem. op.); (Werley v. Cannon, 344 S.W.3d 527, 535 (Tex.
App.—El Paso 2011, no pet.); Akhtar v. Leawood HOA, Inc., 525 S.W.3d 814, 820–21 (Tex.
App.—Houston [14th Dist.] 2017, no pet.)). Manning also states, in a conclusory manner, that
the sanction was excessive, but he failed to make any meaningful challenge to the amount of
attorney fees awarded at the motion for new trial hearing or on appeal. He did not challenge that
counsel’s testimony at the final hearing failed to support the amount awarded as attorney fees.
As a result, we cannot conclude that the trial court abused its discretion in determining that
counsel’s testimony was sufficient to support the sanctions award since “generally an
acknowledgment of the costs and fees incurred as a result of the sanctionable conduct is a good
starting point.” Kamel v. AdvoCare Int’l, L.P., No. 05-16-00433-CV, 2017 WL 1149669, at *5
(Tex. App.—Dallas Mar. 28, 2017, no pet.) (mem. op.) (explaining that proof of necessity or
reasonableness of attorney fees under Arthur Andersen & Co. v. Perry Equipment Corp., 945
S.W.2d 812 (Tex. 1997), is not required when fees are assessed as sanctions) (citing Gorman v.
Gorman, 966 S.W.2d 858, 868–69 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Low, 221
S.W.3d at 620–21).
17
Because we find no abuse of discretion in the imposition of the attorney fees awarded as
sanctions, we overrule this point of error.
V. Manning Has Failed to Brief His Remaining Arguments
Because we have no jurisdiction over possession issues and have already affirmed the
trial court’s attorney fee award, we next consider arguments related to the award of past due rent.
In his last two points of error, Manning lodges a conclusory complaint about the legal and factual
sufficiency of the evidence and argues that the County Court erred by granting a continuance
after it had granted a writ of possession. We find both points inadequately briefed.
“Initially we must note that pro se litigants are held to the same standards as licensed
attorneys and must comply with all applicable rules of procedure.” In re C.N.M., No. 10-10-
00178-CV, 2011 WL 1049383, at *1 (Tex. App.—Waco Mar. 23, 2011, no pet.) (mem. op.)
(citing Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no pet.);
Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied)). “A
pro se litigant is required to properly present his case on appeal just as he is required to do at the
trial court.” Id. (citing Strange, 126 S.W.3d at 678). “This Court has no duty to perform an
independent review of the record and applicable law to determine whether there was error.” Id.(citing Strange, 126 S.W.3d at 678). “Were we to do so, even on behalf of a pro se litigant, we
would be forced to stray from our role as neutral adjudicators and become an advocate for that
party.” Id. (citing Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet.
denied) (per curiam)). “Similarly, we cannot and will not speculate as to the substance of the
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issues [an appellant] urges us to address but fails to appropriately include in his brief.” Id.(citing Strange, 126 S.W.3d at 678).
“The Texas Rules of Appellate Procedure control the required contents and organization
for an appellant’s brief.” Delta Cty. Appraisal Dist. v. PPF Gin & Warehouse, LLC, 632 S.W.3d
637, 652 (Tex. App.—Texarkana 2021, pet. filed) (quoting Valadez v. Avitia, 238 S.W.3d 843,
845 (Tex. App.—El Paso 2007, no pet.) (citing TEX. R. APP. P. 38.1)). “In order to avoid
forfeiting a legal argument for inadequate briefing, an appellant’s brief must contain ‘a clear and
concise argument for the contentions made, with appropriate citations to authorities and the
record.’” Id. (quoting TEX. R. APP. P. 38.1(i)). “Failure to cite legal authority or provide
substantive analysis of the legal issues presented results in waiver of the complaint.” Id.(quoting TEX. R. APP. P. 38.1(i)).
The entire substance of Manning’s legal and factual sufficiency complaint reads, “The
Courts’ findings of fact are not legally or factually sufficient in that the evidence that was
presented were [sic] inaccurate and or falsified and the only witness was not even sworn in when
he testified. Furthermore, he was the plaintiff. Furthermore, his testimony was hearsay.” “Bare
assertions of error, without argument or authority, waive error.” Pettit v. Tabor, No. 06-19-
00002-CV, 2020 WL 216025, at *14 (Tex. App.—Texarkana Jan. 15, 2020, pet. denied) (mem.
op.); see Kennedy v. Jones, No. 06-19-00068-CV, 2020 WL 62022, at *3 (Tex. App.—
Texarkana Jan. 7, 2020, no pet.) (mem. op.) (“Briefing requirements are not met ‘by merely
uttering brief conclusory statements, unsupported by legal citations.’” (quoting Hollis v. Acclaim
Physician Grp., Inc., No. 02-19-00062-CV, 2019 WL 3334617, at *3 (Tex. App.—Fort Worth
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July 25, 2019, no pet.) (per curiam) (mem. op.))). This rule also applies to complaints about the
sufficiency of the evidence. See Coble v. Adams, No. 01-13-00562-CV, 2014 WL 6602480, at
*3 (Tex. App.—Houston [1st Dist.] Nov. 20, 2014, no pet.) (mem. op.) (citing Marin Real Estate
Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San Antonio 2011, no pet.)); Martin-
Simon v. Womack, 68 S.W.3d 793, 798 n.5 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).
Because Manning fails to provide substantive analysis with appropriate reference to the record,
we overrule his legal sufficiency point. We also find that Manning failed to provide any relevant
authority to support his contention that Williams’s testimony was hearsay or that he was not
properly sworn and overrule those complaints based on the inadequate briefing.6
Johnson and Williams also argue that Manning failed to adequately brief his point of
error related to the trial court’s grant of a continuance. While Manning includes case citations in
his argument, he fails to cite relevant authority supporting his contention that reversal is
warranted because the trial court granted a continuance and does not explain why the issue is not
moot. See Smale v. Williams, No. 06-18-00055-CV, 2019 WL 490136, at *4 (Tex. App.—
Texarkana Feb. 8, 2019, no pet.) (mem. op.); In re Torres, No. 03-12-00156-CV, 2012 WL
1149301, at *1 (Tex. App.—Austin Apr. 4, 2012, no pet.) (mem. op.). He also fails to address
the arguments cited by Johnson and Williams as to why a continuance was necessary. As a
result, we find that the issue is inadequately briefed, and we decline to address it. See TEX. R.
6
Even so, we note that sworn testimony averring that a witness’s previously unsworn testimony was the truth is
sufficient to render the previously unsworn testimony competent evidence. Stephenson v. Lynch, No. 05-99-01874-
CV, 2001 WL 126403, at *5–6 (Tex. App.—Dallas Feb. 15, 2001, pet. denied) (not designated for publication); see
Beck v. State, 719 S.W.2d 205, 213 n.5 (Tex. Crim. App. 1986) (“When a witness reaffirms testimony he gave
before he was sworn, such testimony becomes competent.”).
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APP. P. 38.1(h); In re R.F.N., No. 10-03-081-CV, 2003 WL 23120211, at *3 (Tex. App.—Waco
Dec. 31, 2003, no pet.) (mem. op.).
We overrule Manning’s last two points of error.
VII. Conclusion
We dismiss all arguments made by Manning that relate to the issue of possession of the
Property for want of jurisdiction and affirm the trial court’s awards to Johnson and Williams of
past due rent and attorney fees.
Scott E. Stevens
Justice
Date Submitted: October 4, 2021
Date Decided: December 9, 2021
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