in the Interest of C.A.W.P. and Z.J.W.P., Minor Children ( 2014 )

NUMBER 13-12-00382-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE C.A.W.P. AND Z.J.W.P., MINOR CHILDREN
On appeal from the County Court at Law No. 5
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion by Justice Longoria
Appellant, W.H.W., appeals the trial court’s judgment for appellees, R.M.P.,
individually and as next friend of C.A.W.P. and Z.J.W.P., minor children.1 For the reasons
set forth herein, the Court affirms the trial court’s judgment.2
1 See TEX. R. CIV. P. 44. We refer to the parties by their initials to protect the identity of the minor
children. See TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2013 3d C.S.) (“On the motion
of the parties or on the court’s own motion, the appellate court in its opinion may identify the parties by
fictitious names or by their initials only.”).
2 See TEX. R. APP. P. 43.2(a) & 47.4.
I. BACKGROUND
In 2012, appellees filed their original petition alleging causes of action against
appellant for intentional infliction of emotional distress based on, inter alia, appellant’s
alleged conduct in threatening and harassing his minor children, C.A.W.P. and Z.J.W.P.,
and his alleged conduct against their mother, R.M.P., in being a “vexatious litigant” who
has “filed approximately 200 pleadings and motions in the States of Texas, Utah,
Tennessee and Ohio with each being eventually denied or dismissed . . . .” Appellant
filed an answer and a motion to dismiss for lack of personal jurisdiction. Appellant did not
request a hearing or obtain a ruling on his motion to dismiss for lack of personal
jurisdiction. Subsequently, appellant filed a pleading entitled, “Counterclaim and
Counterclaim Additional Parties – Conspiracy – Intentional Tort – Civil Rights Violations
– Fraud,” seeking $10 million in compensatory damages, as well as $100 million in
punitive damages, against R.M.P. and others, including R.M.P.’s lawyers and the
presiding judge of the trial court. The trial court severed the counterclaim, and it is not
part of this appeal.
Although the trial court found that appellant was duly notified concerning the trial
date, which was set for May 30, 2012, appellant failed to appear for the final hearing.3
Appellees presented evidence consisting of R.M.P.’s testimony and two sets of deemed
admissions. Thereafter, the trial court entered a final judgment awarding each appellee
$750,000.00 in compensatory damages, $10,833.00 in prejudgment interest, and $1
million in exemplary damages.4
3 The record reflects that appellant did not file a motion for new trial. However, appellant filed a
combined motion to reset hearing and motion to order electronic appearance, which was file stamped May
31, 2012. In the motion, dated May 29, 2012, appellant asserted that he “got NO NOTICE of such a hearing”
to be held on May 30, 2012 and requested that “he be allowed to appear electronically by telephone at any
future hearing.” The motion was not verified, and there were no affidavits attached to it. See TEX. R. CIV.
P. 251.
4 The trial court made an affirmative finding that appellees had “established by clear and convincing
2
II. CONTINUING JURISDICTION
In his first issue, appellant argues that the “trial court refused to obey Texas Law
as to continuing jurisdiction in matters involving custody of minor children as well as
general jurisdiction rules.” In his brief, appellant argues that the “trial court judge has
refused to rule that Texas no longer has continuing jurisdiction between the parties, as
TEXAS FAMILY CODE TITLE 5 Sec. 155.003. (b) (1) and (c) (1) demands . . . .”
According to appellant, “The simple fact is, the parties moved out of the state of Texas
over FIVE YEARS AGO . . . .” Appellant argues that the trial court “has ignored clear
Texas Law and refused to acknowledge that due to the change of residences of the
parties involved, having moved out of the state of Texas OVER FIVE YEARS AGO, that
Texas no longer has continuing jurisdiction in matters between the parties.” Appellant
argues that “[i]t is clear Judicial Error and Abuse for the district court [sic] to ignore TEXAS
FAMILY CODE TITLE 5 Sec. 155.003. (b) (1) and ( c ) (1).”
A. Applicable Law
“A trial court generally retains continuing, exclusive jurisdiction to modify its final
order in a suit affecting the parent-child relationship.”5 However, Section 155.003(b)(1)
of the Texas Family Code provides, “A court of this state may not exercise its continuing,
exclusive jurisdiction to modify managing conservatorship if . . . the child’s home state is
other than this state . . . .”6 Similarly, Section 155.003(c)(1) of the Texas Family Code
provides as follows:
A court of this state may not exercise its continuing, exclusive jurisdiction to
modify possessory conservatorship or possession of or access to a child if
evidence that the harm they have suffered as a result of [appellant’s] . . . conduct resulted from malice as
defined in Section 41.001(7)(A) of the Texas Civil Practice and Remedies Code.” See TEX. CIV. PRAC. &
REM. CODE ANN. § 41.001(7)(A) (West, Westlaw through 2013 3d C.S.).
5 Phillips v. Beaber, 995 S.W.2d 655, 657 (Tex. 1999).
6 TEX. FAM. CODE ANN. § 155.003(b)(1) (West, Westlaw through 2013 3d C.S.).
3
. . . the child’s home state is other than this state and all parties have
established and continue to maintain their principal residence outside this
state . . . .7
B. Discussion
In his brief, appellant does not complain that the judgment being appealed modified
managing conservatorship or modified possessory conservatorship or possession of or
access to a child.8 In fact, appellant states that “[t]his was not even a custody related
matter, it was a completely new filing involving an alleged civil tort and injury alleged to
have occurred outside the state of Texas by a person that does not reside in Texas and
injuries to parties that do not reside in the state of Texas.” According to appellant, the
“judge in this matter awarded MILLIONS of dollars to the Petition[er] of the Tort Action . .
. .” Based on the foregoing, the Court rejects appellant’s argument that the trial court
violated Section 155.003(b)(1) or (c)(1) of the Texas Family Code.9 The Court overrules
appellant’s first issue.
III. PERSONAL JURISDICTION
In his second issue, appellant argues that “[t]he trial court’s decision that it
maintained continuing jurisdiction in a child custody matter and a new tort petition where
none of the parties resided in the state of Texas for OVER FIVE YEARS was clear judicial
error and abuse.” In addressing appellant’s first issue, the Court has addressed
appellant’s assertion that the trial court erred in exercising continuing jurisdiction in a child
custody matter. Appellant’s second issue presents nothing further for the Court to
7 Id. § 155.003(c)(1).
8 See id. § 155.003(b)(1) & (c)(1).
9 See id.
4
address with respect to continuing jurisdiction.10 Accordingly, the Court will address
appellant’s second issue as it relates to the issue of personal jurisdiction.11
A. Applicable Law
A Texas court may exercise personal jurisdiction over a nonresident defendant
only if jurisdiction is authorized by the Texas long-arm statute.12 However, “[p]ersonal
jurisdiction over a party may be waived if it is not properly contested.” 13 Thus, “a
nonresident appellant will be subject to personal jurisdiction in Texas courts if the
appellant enters a general appearance.”14 “[A] challenge [to personal jurisdiction] is
properly raised in a special appearance,”15 subject to the “due-order-of-hearing”
10 See TEX. R. APP. P. 47.1.
11 See id.
12 See TEX. CIV. PRAC. & REM. CODE ANN. § 17.042 (West, Westlaw through 2013 3d C.S.). The
Texas “long-arm statute,” which permits Texas courts to exercise personal jurisdiction over nonresidents
who do business in Texas, provides as follows:
In addition to other acts that may constitute doing business, a nonresident does business
in this state if the nonresident:
(1) contracts by mail or otherwise with a Texas resident and either party is to
perform the contract in whole or in part in this state;
(2) commits a tort in whole or in part in this state; or
(3) recruits Texas residents, directly or through an intermediary located in this
state, for employment inside or outside this state.
Id.
13 In re Barnes, 127 S.W.3d 843, 846 (Tex. App.—San Antonio 2003, orig. proceeding); see also
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985) (“[T]he personal jurisdiction requirement is
a waivable right.”).
14 Arnold v. Price, 365 S.W.3d 455, 458 (Tex. App.—Fort Worth 2011, no pet.). A party enters a
general appearance “when it (1) invokes the judgment of the court on any question other than the court’s
jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from
the court.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (per curiam) (citing Dawson–Austin
v. Austin, 968 S.W.2d 319, 322 (Tex. 1998)). Thus, for example, “[a] party may waive a complaint
challenging the trial court’s assertion of in personam jurisdiction by voluntary participation in the trial of the
suit.” Abderholden v. Morizot, 856 S.W.2d 829, 832 (Tex. App.—Austin 1993, no writ). “The test for a
general appearance is whether a party requests affirmative relief inconsistent with an assertion that the trial
court lacks jurisdiction.” Arnold, 365 S.W.3d at 458.
15 In re S.A.V., 837 S.W.2d 80, 85 (Tex. 1992). “[A] special appearance may be made by any party
either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person or
5
requirement, which “means that a special appearance motion ‘shall be heard and
determined before a motion to transfer venue or any other plea or pleading may be
heard.’”16 “[T]he specially appearing appellant [must] timely request a hearing,
specifically bring that request to the trial court’s attention, and secure a ruling on the
preliminary question of personal jurisdiction.”17 “A special appearance not ruled upon by
the trial court presents nothing for review.”18
B. Standard of Review
“Whether a court can exercise personal jurisdiction over nonresident appellants is
a question of law, and thus we review de novo the trial court’s determination of a special
appearance.”19 “When as here a trial court does not issue findings of fact and conclusions
property of the appellant on the ground that such party or property is not amenable to process issued by
the courts of this State.” TEX. R. CIV. P. 120a. “Such special appearance shall be made by sworn motion
filed prior to motion to transfer venue or any other plea, pleading or motion . . . .” Id. Rule 120a states,
“[e]very appearance, prior to judgment, not in compliance with this rule is a general appearance.” Id.; see
also Klingenschmitt v. Weinstein, 342 S.W.3d 131, 133 (Tex. App.—Dallas 2011, no pet.) (“Rule 120a
requires strict compliance, and a non-resident appellant will be subject to personal jurisdiction in Texas
courts if the appellant enters a general appearance.”).
16 First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 776 (Tex. App.—Houston [1st Dist.] 2008,
pet. denied) (quoting TEX. R. CIV. P. 120a(2)); but see Trenz v. Peter Paul Petroleum, 388 S.W.3d 796, 802
(Tex. App.—Houston [1st Dist.] 2012, no pet.) (“Generally, if a defendant obtains a hearing on a motion that
seeks affirmative relief unrelated to his special appearance before he obtains a hearing and ruling on his
special appearance, he has entered a general appearance and thus waived any challenge to personal
jurisdiction; but if a defendant obtains a hearing on a motion that only seeks relief appurtenant to his special
appearance, it may not result in waiver.”).
17 Milacron, Inc. v. Performance Rail Tie, L.P., 262 S.W.3d 872, 876 (Tex. App.—Texarkana 2008,
no pet.); Bruneio v. Bruneio, 890 S.W.2d 150, 154 (Tex. App.—Corpus Christi 1994, no writ) (“The specially
appearing appellant must not only request a hearing, but specifically call that request to the trial court’s
attention. He waives his special appearance by not timely pressing for a hearing thereon.”); Steve Tyrell
Prods., Inc. v. Ray, 674 S.W.2d 430, 437 (Tex. App.—Austin 1984, no writ) (“We hold that appellants waived
their special appearance by not timely pressing for a hearing on their special appearance motion to the
jurisdiction.”).
18Wilson v. Chemco Chem. Co., 711 S.W.2d 265, 266 (Tex. App.—Dallas 1986, no writ); see also
Grynberg v. M–I L.L.C., 398 S.W.3d 864, 880 (Tex. App.—Corpus Christi 2012, no pet.) (holding that party
“waived any special appearance . . . by failing to request a hearing or obtain a ruling on the preliminary
question of personal jurisdiction”).
19 Kelly v. Gen. Interior Const., Inc., 301 S.W.3d 653, 657 (Tex. 2010).
6
of law . . . , all facts necessary to support the judgment and supported by the evidence
are implied.”20
C. Discussion
In this case, appellant failed to make a timely request for a hearing on his
attempted special appearance, failed to bring the specific request to the trial court’s
attention, and failed to secure a ruling on his jurisdictional challenge. In addition, by filing
his counterclaim, appellant requested affirmative relief inconsistent with his assertion that
the trial court lacked personal jurisdiction. Appellant therefore waived any error in the trial
court’s exercise of personal jurisdiction over him in this matter.21 Furthermore, to the
extent that appellant is attempting to complain about the trial court’s exercise of personal
jurisdiction over appellees, we reject appellant’s argument because the right to make that
complaint belonged to appellees, who clearly wished to submit to the trial court’s
jurisdiction by commencing this suit and thereby waiving any challenge to the court’s
personal jurisdiction.22 The Court overrules appellant’s second issue.
IV. SUFFICIENCY OF THE EVIDENCE
In his third issue, appellant argues that the “trial court’s decision that a new tort
petition alleging the Petitioner of that tort filing was injured in the way of having a
‘headache’ is not an injury that justifies the type of award a biased judge awarded in a
matter where the court had NO JURISDICTION anyway, such an award was clear judicial
error and abuse.” Appellant cites to the Fifth and Fourteenth Amendments to the United
20 Id.
21 See Rudzewicz, 471 U.S. at 472 n.14 (“[T]he personal jurisdiction requirement is a waivable
right.”); Grynberg, 398 S.W.3d at 880; Arnold, 365 S.W.3d at 458; Milacron, 262 S.W.3d at 875–76; Bruneio,
890 S.W.2d at 154; Wilson, 711 S.W.2d at 266; Steve Tyrell Prods., Inc., 674 S.W.2d at 437.
22 See Rudzewicz, 471 U.S. at 472 n.14.
7
States Constitution in support of this contention.23 In the argument section of his brief,
appellant states, “The biased judge in this matter awarded MILLIONS of dollars to the
Petition[er] of the Tort Action over an alleged injury of a headache with no proof of
hospitalization for the alleged injury. A completely illegal and unjustifiable award it was.”
A. Issue Presented
To the extent that appellant’s third issue is premised on his assertion that the trial
court lacked jurisdiction, we note that the Court has addressed and rejected that
contention for the reasons stated in its discussion of appellant’s first two issues. 24
Appellant’s third issue presents nothing further for the Court to decide with respect to
jurisdiction.25 Accordingly, the Court will address appellant’s third issue as it relates to
the award of “MILLIONS of dollars to the Petition[er] of the Tort Action over an alleged
injury of a headache with no proof of hospitalization for the alleged injury.” 26
In their brief, appellees argue that the evidence is legally and factually sufficient to
support the trial court’s judgment, but they also maintain that appellant has waived any
complaint regarding the legal or factual sufficiency of the evidence because he did not
make the complaint on appeal. We agree in part.
We agree that appellant has not properly challenged the factual sufficiency of the
evidence. First, appellant has not purported to challenge the factual sufficiency of the
evidence.27 Second, appellant has not provided a statement of the standard of review for
23 See U.S. CONST. amends. V & XIV.
24 See TEX. R. APP. P. 47.1.
25 See id.
26 See id.
27 See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (“It is axiomatic that an
appellate court cannot reverse a trial court’s judgment absent properly assigned error.”).
8
a factual sufficiency point.28 Third, appellant has not provided any appropriate citations
to or discussion of the law applicable to a claim for intentional infliction of emotional
distress.29 Fourth, with the exception of his several references to the “alleged headache”
suffered by R.M.P., appellant has not identified or discussed any of the evidence
appellees offered to prove their claims.30 Fifth, appellant has not discussed why the
evidence is factually insufficient to support the trial court’s judgment. 31 Sixth, appellant
has not requested relief appropriate for a factual sufficiency challenge. 32 Based on the
foregoing, the Court concludes that appellant has waived any challenge to the factual
sufficiency of the evidence.33
With respect to the legal sufficiency of the evidence, the Court is less inclined to
deem the point waived. “It is our practice to liberally construe the points of error in order
to obtain a just, fair and equitable adjudication of the rights of the litigants.”34 “We look
28 See Campbell v. State, 85 S.W.3d 176, 184 (Tex. 2002) (refusing to address legal sufficiency
point because, among other things, the petitioner did “not mention the standard for reviewing the legal
sufficiency of the evidence”).
29 See TEX. R. APP. P. 38.1(i); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007,
no pet.) (“Failure to cite legal authority or provide substantive analysis of the legal issue presented results
in waiver of the complaint.”).
30 See Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex. App.—Dallas 2001, pet. denied)
(“[W]hen an appellant challenges the factual sufficiency of the evidence on an issue on which it did not have
the burden of proof, the appellant must demonstrate the evidence is insufficient to support the adverse
finding.”).
31 See Campbell, 85 S.W.3d at 184 (noting that “the briefs do not discuss . . . why the evidence
does not, as a matter of law, support the trial court’s . . . order”); Trenholm v. Ratcliff, 646 S.W.2d 927, 934
(Tex. 1983) (“Points of error must be supported by argument and authorities, and if not so supported, the
points are waived.”).
32 See State v. Brown, 262 S.W.3d 365, 370 (Tex. 2008) (“A party generally is not entitled to relief
it does not seek.”); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 626 (Tex. 2004) (“If . . . there is some
evidence to prove an issue but that evidence is factually insufficient, the only remedy is a new trial.”).
33 See DeSoto Wildwood Dev., Inc. v. City of Lewisville, 184 S.W.3d 814, 822 (Tex. App.—Fort
Worth 2006, no pet.) (“[B]ecause the findings of fact are unchallenged through a factual or legal sufficiency
point, they are binding on the parties and [on] this court.”).
34 Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982).
9
not only at the wording of the points of error, but to the argument under each point to
determine as best we can the intent of the party.”35 In this case, it is clear that appellant
takes issue with the award of millions of dollars “over an alleged injury of a headache with
no proof of hospitalization for the alleged injury.” However, it is equally clear that
appellant’s argument is limited to the claim by R.M.P. Appellant has failed to address the
claims of C.A.W.P. and Z.J.W.P., which were not based on an “alleged injury of a
headache.” Their claims were based on allegations that appellant had threatened and
harassed them. Appellant has not addressed these allegations or discussed the evidence
offered to prove them. He has not discussed why the evidence is legally insufficient to
support the trial court’s judgment with respect to the children’s claims or the amount of
damages awarded to the children. Therefore, the Court concludes that appellant has
waived any legal sufficiency challenge to the children’s claims. Accordingly, the Court
will address appellant’s third issue only as it relates to R.M.P.’s claim.
B. Standard of Review
“In reviewing a verdict for legal sufficiency, we credit evidence that supports the
verdict if reasonable jurors could, and disregard contrary evidence unless reasonable
jurors could not.”36 “A challenge to the legal sufficiency of evidence will be sustained
when, among other things, the evidence offered to establish a vital fact does not exceed
a scintilla.”37 “Evidence does not exceed a scintilla if it is so weak as to do no more than
create a mere surmise or suspicion that the fact exists.”38
35 Id.
36 Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006).
37 Id.
38 Id. (quotations omitted); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (“The final test
for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review.”).
10
C. Applicable Law
To prevail on her claim for intentional infliction of emotional distress, R.M.P. had
to prove by a preponderance of the evidence that: (1) appellant acted intentionally or
recklessly; (2) his conduct was extreme and outrageous; (3) his actions caused her
emotional distress; and (4) the emotional distress suffered was severe.39
The Texas Supreme Court has explained that “[s]evere emotional distress is
distress that is so severe that no reasonable person could be expected to endure it.”40 In
the same decision, it held that the evidence was legally sufficient to support a finding that
the plaintiffs (employees) had suffered “severe emotional distress” based on the following:
The employees testified that, as a result of being exposed to Shields’s
outrageous conduct, they experienced a variety of emotional problems,
including crying spells, emotional outbursts, nausea, stomach disorders,
headaches, difficulty in sleeping and eating, stress, anxiety, and
depression. The employees testified that they experienced anxiety and fear
because of Shields’s continuing harassment, especially his charges and
rages. Each employee sought medical treatment for these problems, and
all three plaintiffs were prescribed medication to alleviate the problems. An
expert witness testified that each of them suffered from post-traumatic
stress disorder.41
To our knowledge, the Texas Supreme Court has not, to date, imposed a requirement
that a claimant must produce evidence of hospitalization to prove a claim for intentional
infliction of emotional distress.
D. Discussion
Appellant argues that the trial court erred in awarding a money judgment to R.M.P.
based on “an alleged injury of a headache with no proof of hospitalization for the alleged
injury.” Appellant has not provided the Court with any appropriate citations to legal
39 See Kroger, 216 S.W.3d at 796.
40 GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999).
41 Id. at 618–19.
11
authorities or to the record in support of his contention.42 Furthermore, appellant has not
discussed the standard of review, controlling law, or evidence admitted at trial.43 We are
mindful that “[a]ppellate courts should reach the merits of an appeal whenever reasonably
possible.”44 However, “[p]oints of error asserted on appeal but not briefed are waived.” 45
In their brief, appellees point out that appellant was deemed to have admitted that
his conduct caused emotional pain and suffering to R.M.P. Appellees also point out that
R.M.P. testified without objection that appellant’s conduct has proximately caused her
damage, and that it caused her to suffer severe emotional distress; in particular,
appellant’s conduct has been the direct and probable cause of her severe mental pain
and anguish, as she believes that appellant is taking steps to violate prior orders entered
by the trial court. R.M.P. testified without objection that she is losing sleep worrying about
whether she will be able to track appellant down, whether it be in Tennessee or Kentucky,
because he provides an address from Tennessee; however, all the mail he sends is
postmarked from Pikesville, Kentucky. R.M.P. testified without objection that the
emotional distress appellant has caused her to suffer has been severe in that she has
suffered numerous intense headaches, is unable to sleep at night, has been unable to
enjoy or digest her food, and she has engaged the services of a psychotherapist to assist
her in dealing with overwhelming feelings of anxiousness and nervousness. R.M.P.
testified without objection that she has suffered and will continue to suffer additional
42 See TEX. R. APP. P. 38.1(i).
43See City of Austin v. Chandler, 428 S.W.3d 398, 407 (Tex. App.—Austin 2014, no pet.) (“When
an appellant challenges the legal sufficiency of the evidence supporting an adverse finding of fact for which
the opposing party had the burden of proof, the appellant must demonstrate that there is no evidence, or
merely a scintilla of evidence, to support the adverse finding.”).
44 Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008).
45 Smith v. Tilton, 3 S.W.3d 77, 84 (Tex. App.—Dallas 1999, no pet.); see also Fredonia State Bank
v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (“[E]rror may be waived by inadequate
briefing.”); Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983) (“Points of error must be supported by
argument and authorities, and if not so supported, the points are waived.”).
12
damages as a result of appellant’s conduct and that in all reasonable probability she will
continue to suffer this mental pain and anguish for a long time into the future. R.M.P. also
testified without objection that she has been unjustly troubled by appellant’s filing of
numerous pleadings and motions against her in different states.
In his reply brief, appellant states, “For the court to award MILLIONS for an alleged
‘headache’ is a gross judicial act and this court has the DUTY to vacate any award in this
matter, especially such a gross award as MILLIONS of dollars for a headache.” Appellant
also states, “There is no legal precedence to award MILLIONS of dollars for an alleged
tort that resulted in a headache, NONE; it is a gross judicial act by a biased judge and
this court has a DUTY to vacate it and admonish the lower court and seek disbarment on
the attorney that bought [sic] the action.”
The Court, having fully considered appellant’s argument and appellees’ response,
is of the opinion that appellant has not demonstrated that the evidence supporting the trial
court’s judgment is no more than a scintilla.46 Appellant has not demonstrated that
reasonable and fair-minded people could not reach the verdict under review based on the
evidence presented at trial because he has not discussed the evidence actually presented
at trial, except to mention repeatedly the headaches suffered by R.M.P.47 As set forth
above, there was other additional evidence offered to support R.M.P.’s claim; however,
appellant has not discussed that evidence and has instead represented to the Court that
her evidence consisted solely of an “alleged headache” that did not require
hospitalization.48 Therefore, the Court rejects appellant’s “generic characterizations”
46 See Sw. Bell Tel., 164 S.W.3d at 626 (“As a rule, if a party with the burden of proof offers no
evidence on an issue, the opposing party is entitled to judgment.”).
47 See Saldana v. Garcia, 285 S.W.2d 197, 200 (Tex. 1955) (“Assuming that the point presented in
the brief was sufficient to direct the court’s attention to the matter complained of, the court is only required
to pass on the merits of the point of error in the light of the statement thereunder.”).
48 See Fredonia, 881 S.W.2d at 283 (“[S]earch[ing] the record for evidence itself . . . has never
13
complaining about the trial court’s award of millions of dollars over a “headache” and
concludes that appellant’s challenge to the sufficiency of the evidence is inadequately
briefed.49
Having concluded that the premise of appellant’s argument is false, the Court
cannot sustain appellant’s challenge to the sufficiency of the evidence. 50 Similarly, the
Court cannot assert new arguments on appellant’s behalf based on its own independent
review of the record.51 Under these circumstances, the Court can reach only one
conclusion, which is that appellant “failed to discharge his burden.” 52 Accordingly, the
Court overrules appellant’s third issue.
V. CONSTITUTIONAL CHALLENGE
In his fourth issue, appellant contends that the trial court’s judgment must be
declared void because the “alleged tort involved constitutionally protected rights of the
Petitioner in this matter . . . .” According to appellant, “the filing of legal actions is a
CONSTITUTIONAL RIGHT of citizens of the United States and such actions cannot be
been considered part of an appellate court’s duties in conducting judicial review.”); Saldana, 285 S.W.2d at
201 (stating that it is not the Court’s duty “to make an independent search” of the record for “any evidence
to support . . . [appellant’s] contention that the trial court’s judgment must be set aside because it was not
supported by [sufficient evidence] . . . .”).
49 Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 237 (Tex. App.—Dallas 2000, pet. denied)
(rejecting “generic characterizations” of the record and deeming point of error waived).
50 See Maranatha Temple, Inc. v. Enter. Products Co., 893 S.W.2d 92, 106 (Tex. App.—Houston
[1st Dist.] 1994, writ denied) (“When the appellant does not provide us with argument that is sufficient to
make an appellate complaint viable, we will not perform an independent review of the record and applicable
law in order to determine whether the error complained of occurred. We will not do the job of the advocate.”)
(citations omitted).
51 See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 722 (Tex. App.—Dallas 2011,
pet. denied) (“Failure to provide substantive analysis waives an issue on appeal.”); Paselk v. Rabun, 293
S.W.3d 600, 613 (Tex. App.—Texarkana 2009, pet. denied) (“It is not the proper role of this Court to create
arguments for an appellant—we will not do the job of the advocate.”); G.R.A.V.I.T.Y. Enters. v. Reece
Supply Co., 177 S.W.3d 537, 546 (Tex. App.—Dallas 2005, no pet.) (“This Court is not responsible for
making [a party’s] . . . arguments for it.”); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (“[The parties] must put forth some specific argument and
analysis showing that the record and the law support[] their contentions.”).
52 Saldana, 285 S.W.2d at 201.
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used as the basis of an alleged tort action as was done in this case.” Appellant does not
provide a clear and concise argument for the contention made, citation to appropriate
authority, or citation to the relevant portions of the record.53 Accordingly, the Court
concludes the issue is inadequately briefed.54 The Court deems the issue waived.55
Therefore, the Court overrules appellant’s fourth issue.
53 See TEX. R. APP. P. 38.1(i).
54 See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”); Fredonia State Bank v. Gen.
Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (holding appellate courts have discretion to deem
points of error waived due to inadequate briefing); Swinnea v. ERI Consulting Eng’rs, 364 S.W.3d 421, 423
(Tex. App.—Tyler 2012, pet. denied) (“Inadequate briefing results in waiver of the complaint.”); In re N.E.B.,
251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.) (“The law is well established that, to present an
issue to this Court, a party’s brief shall contain, among other things, a concise, nonargumentative statement
of the facts of the case, supported by record references, and a clear and concise argument for the
contention made with appropriate citations to authorities and the record. . . . When a party fails to
adequately brief a complaint, he waives the issue on appeal.”) (citations omitted); Valadez v. Avitia, 238
S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (“Failure to cite legal authority or provide substantive
analysis of the legal issue presented results in waiver of the complaint.”); Morrill v. Cisek, 226 S.W.3d 545,
548 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Rule 38 requires a party to provide us with such
discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.
This is not done by merely uttering brief conclusory statements, unsupported by legal citations.”) (citations,
quotations omitted); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) (holding that, even though courts interpret briefing requirements reasonably and
liberally, parties asserting error on appeal still must put forth some specific argument and analysis citing
the record and authorities in support of the arguments); Tesoro Petroleum Corp. v. Nabors Drilling USA,
Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“By presenting such
attenuated, unsupported argument, [an appellant] waives its complaints.”); Horton v. Horton, 965 S.W.2d
78, 88 (Tex. App.—Fort Worth 1998, no pet.) (“By raising an issue and failing to present any argument or
authority on that issue, the party waives that issue.”); Hall v. Stephenson, 919 S.W.2d 454, 466 (Tex. App.—
Fort Worth 1996, writ denied) (“An appellant has the duty to show that the record supports her contentions
and to point to the supporting places in the record.”); Maranatha Temple, Inc. v. Enter. Products Co., 893
S.W.2d 92, 106 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“When the appellant does not provide
us with argument that is sufficient to make an appellate complaint viable, we will not perform an independent
review of the record and applicable law in order to determine whether the error complained of occurred.”);
Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex. App.—Corpus Christi 1993, writ
denied) (holding that “right to complain of the insufficiency” of evidence was “waived” by “failing to address
all of the elements” of the claims); Barham v. Turner Const. Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—
Dallas 1990, writ denied) (“[A]n appellant has the burden to show that the record supports contentions
urged and to point out the place in the record where the complained-of matters are shown.”); Golden State
Mut. Life Ins. Co. v. White, 374 S.W.2d 901, 904 (Tex. Civ. App.—Dallas 1964, writ ref’d n.r.e.) (holding
that contention that “there was not sufficient legal evidence in the record to support said judgment” was “too
general for our consideration”).
55 See Fredonia, 881 S.W.2d at 284. The Court notes that even if the issue were adequately briefed
and not deemed waived, the Court would overrule the issue as it relates to the claims by C.A.W.P. and
Z.J.W.P. because those claims were not based on appellant’s alleged conduct in filing frivolous lawsuits
and pleadings; rather, the claims were based on appellant’s alleged conduct in threatening and harassing
his minor children. Therefore, even if the Court were to hold that a claim for intentional infliction of emotional
distress cannot be based on the filing of frivolous lawsuits and pleadings, the holding would not establish
that the trial court erred by rendering a judgment for C.A.W.P. and Z.J.W.P. on their claims against appellant
for intentional infliction of emotional distress because their claims were not based on the filing of frivolous
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VI. TELEPHONIC APPEARANCE
In his fifth issue, appellant contends that the trial court erred by not allowing him
“to appear via telephonic appearance.” Appellant does not provide a clear and concise
argument for the contention made, citation to appropriate authority, or citation to the
relevant portions of the record.56 Accordingly, the Court concludes the issue is
inadequately briefed.57 The Court deems the issue waived.58 Therefore, the Court
overrules appellant’s fifth issue.
VII. CONCLUSION
The Court affirms the trial court’s judgment.
NORA L. LONGORIA
Justice
Delivered and filed the
4th day of September, 2014.
lawsuits and pleadings.
56 See TEX. R. APP. P. 38.1(i).
57 See id.
58See Fredonia, 881 S.W.2d at 284. In their brief, appellees point out that appellant filed his motion
to appear by telephone the day after the bench trial was held. See TEX. R. APP. P. 33.1(a) (requiring a
timely request to preserve error). Therefore, even if the issue were adequately briefed and not deemed
waived, the Court would overrule the issue because the error was not preserved by a timely request. See
id.
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