Stuart N. Auld v. Southwest Petroleum Company, L.P., DRC Petroleum, Ltd. and Charles E. Hammond ( 2022 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
STUART N. AULD, § No. 08-21-00114-CV
Appellant, § Appeal from the
v. § 109th Judicial District Court
SOUTHWEST PETROLEUM COMPANY, § of Winkler County, Texas
L.P., DRC PETROLEUM, LTD., and
CHARLES E. HAMMOND, § (TC# DC16-16907)
Appellees. §
MEMORANDUM OPINION
BACKGROUND
Stuart N. Auld, Appellant, appearing pro se, appeals from the trial court’s orders granting
summary judgment, and dismissal for want of prosecution and severance in favor of Appellees.
We affirm.
Factual & Procedural Background
On June 6, 2016, Appellant sued his brother, John W. Auld Jr., Charles E. Hammond
(Hammond), Southwest Petroleum Company, L.P. (Southwest), and DRC Petroleum, LTD.
(DRC). The causes of action included: Quiet Title Action (Fraudulent Conveyance); Unlawful
Conversion Unjust Enrichment; Request for Accounting; Tortuous Interference; Tortuous
Interference With Economic Expectancy AKA Tortious Interference With Prospective Inheritance
and/or Tortious Interference With Testamentary Bequest and/or Tortious Interference With
Contractual Relations and or Tortious Interference With Expectancy of Inheritance; Fraudulent
Concealment; Outrageous Conduct; Slander of Title (Injurious Falsehood); Civil Conspiracy;
Attorney Malpractice; Slander and False Light/Ongoing RICO (Racketeer Influenced and Corrupt
Organizations Act).
Appellant’s claims center around real property interests in the state of Kansas and Winkler
County, Texas, and his expectancy of inheritance. Appellant attached deeds to his petition
concerning Kansas and Texas real property interests—specifically, mineral and royalty deeds.
Hammond is not a party to any of these deeds, neither as a grantor nor grantee. In 2012, John Auld
Jr., as Administrator of the Lillian Nichols Klausen Estate, executed, acknowledged, and delivered
to Southwest and DRC certain mineral and royalty deeds in Winkler County, Texas.
In November 2020, Hammond filed a no-evidence motion for summary judgment, a motion
to dismiss for want of prosecution and severance. In December 2020, Appellant filed his summary
judgment response. The summary judgment hearing was originally set for January 20, 2021. On
January 12, 2021, Appellant filed a motion for continuance of the summary judgment hearing and
a motion to compel discovery. Hammond filed a response to Appellant’s motion for continuance
and motion to compel. The court reset the summary judgment hearing to March 3, 2021.
Appellant’s motion to compel was thereafter denied.
On January 22, 2021, Southwest and DRC filed a motion to dismiss Appellant’s claims for
want of prosecution and severance. On April 23, 2021, the trial court granted Hammond’s motion
for summary judgment and motion for severance. The order granting Hammond’s motion for
summary judgment and severance dismissed all of Appellant’s claims against Hammond, without
specifying any grounds. The trial court also granted Southwest’s and DRC’s motion to dismiss and
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severance. These two orders effectively severed all of Appellant’s claims against Hammond,
Southwest, and DRC into a single, new cause number. Appellant filed a motion for new trial. 1
This appeal followed.
DISCUSSION
In thirteen issues, Appellant essentially challenges the trial court’s orders granting no-
evidence summary judgment and dismissal for want of prosecution and for severance in favor of
Appellees. We affirm.
Standard of Review
A trial court’s granting of a motion for summary judgment is reviewed de novo. Murray v.
Nabors Well Service, 622 S.W.3d 43, 50 (Tex.App.—El Paso 2020, no pet.). A motion for
summary judgment must state the specific grounds upon which it is based. Id. (citing TEX.R.CIV.P.
166a(c), (i)). We take as true all evidence favorable to the nonmovant and indulge every reasonable
inference in the nonmovant’s favor. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex.
2021). A no-evidence motion shifts the burden to the nonmovant to present evidence raising a
genuine issue of material fact supporting each element contested in the motion. Id. A no-evidence
motion for summary judgment is properly granted when “there is no evidence of one or more
essential elements of a claim or defense on which an adverse party would have the burden of proof
at trial.” Id. (citing TEX.R.CIV.P. 166a(i)). In other words, the court must grant the motion unless
the respondent produces more than a scintilla of probative evidence to raise a genuine issue of
material fact. See TEX.R.CIV.P. 166a(i)); JLB Builders, 622 S.W.3d at 864 (citing King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)).
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The motion for new trial is file stamped June 28, 2021, but Appellant stated May 11, 2021, in his certificate of
service.
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Briefing Waiver
In order to obtain a just, fair, and equitable adjudication of the rights of litigants, it is our
practice to liberally construe points of error. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690
(Tex. 1989). However, pro se litigants must still adhere to procedural requirements. Valadez v.
Avitia, 238 S.W.3d 843, 845 (Tex.App.—El Paso 2007, no pet.)(noting pro se litigants are held to
same standards as licensed attorneys and must comply with all applicable rules of procedure). The
Texas Rules of Appellate Procedure govern the required contents and organization for an
appellant’s brief. Id. (citing TEX.R.APP.P. 38.1). An appellant’s brief must contain clear and
concise arguments, including appropriate citations to authority and the record. TEX.R.APP.P.
38.1(i). A brief must also concisely, and without argument, state the facts pertinent to the issues
or points presented, and the statements within must be supported by record references. Id. at
38.1(g).
These requirements are not satisfied by merely uttering brief, conclusory statements
unsupported by citations. Valadez, 238 S.W.3d at 845. Failure to provide citations or substantive
analysis of the legal issue presented results in waiver of the complaint. Id. An appellate court has
no duty—or even a right—to perform an independent review of the record or applicable law to
determine whether there was error. Id. Were we to do so, even on behalf of a pro se litigant, we
would be abandoning our role as neutral adjudicators by undertaking the role of advocate. Id.Analysis
In his appellate brief, Appellant has not sufficiently provided record citations in support of
his contentions. Southwest and DRC challenge all factual statements made by Appellant, as they
contend Appellant misstates, provides no support for, and fails to refer to the clerk’s record to
support the facts in his brief. We agree. See Schlafly v. Schlafly, 33 S.W.3d 863, 873 n.8
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(Tex.App.—Houston [14th Dist.] 2000, pet. denied)(“We note that [Appellant’s] appellate brief
does not contain any references to the record in its ‘Statement of Facts,’ and that his argument
under this issue makes only one reference to the record. This briefing is in clear violation of Texas
Rule of Appellate Procedure 38.1(f).”).
The statement of facts section in Appellant’s brief does not contain record citations, for the
exception of five references to the record, and his arguments within the body of his brief also lack
record citations. Moreover, the majority of Appellant’s arguments also lack proper legal authority,
as they are mostly from federal and state courts of other states. In addition, Appellant’s arguments
are unclear and conclusory. Having failed to comply with Texas Rule of Appellate Procedure 38.1,
we hold Appellant has waived all issues on appeal. We articulate in greater detail below.
A. Issues One and Five
In Issue One, Appellant challenges the validity of the summary judgment order, arguing it
is inappropriate because it did not dispose of all issues. In Issue Five, Appellant maintains the trial
court erred in granting summary judgment because it ignored the facts and the law.
Although Appellant states at the outset the granting of summary judgment is
“inappropriate,” he does not argue the legal merits of this contention. Rather, Appellant’s argument
is general and conclusory, he argues, “[t]he facts are clear in this case and the TX Courts clearly
need to quiet title of this TX Mineral Deed in the name of Plaintiff/Appellant and the other innocent
children beneficiary owners and require the appropriate Defendant/Appellee(s) to pay all costs and
restitution of any income, interest, legal, pecuniary losses, and ALL forms of damages including
opportunity costs resulting from the Defendant/Appellee’s illegal actions.” This sums up the
entirety of his argument for Issue One. How it relates to the validity of the summary judgment
order, we are unable to discern.
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In any case, the trial court’s order granting summary judgment dismissed and severed all
of Appellant’s claims against Hammond. The intent to finally dispose of a case must be
unequivocally expressed in the words of the order itself; if that intent is clear from the order, the
order is final and appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001),
superseded by statute on other grounds as recognized in Indus. Specialists, LLC v. Blanchard Ref.
Co. LLC, 652 S.W.3d 11 (Tex. 2022). The summary judgment order states the trial court
“examin[ed] the pleadings timely filed prior to the hearing, the motion for summary judgment, the
response timely filed by [Appellant], the reply filed by [Hammond,]” and determined Hammond
is entitled to summary judgment. The order further states “all relief requested by [Appellant]
against the Defendant, Charles E. Hammond is DENIED[,] . . . all causes of action asserted by
[Appellant] against [Hammond] is severed from this action and made the subject of a separate
action, having docket number []” and lastly, the order “disposes of all parties and claims in the
Separate Action and is a final and appealable judgment.” On the same day the summary judgment
was granted, the trial court also dismissed and severed all of Appellant’s claims as to Southwest
and DRC. The summary judgment order unequivocally states it disposes of all parties and claims
and is final and appealable.
Accordingly, the summary judgment order and order of dismissal constitute a final
judgment. All of Appellant’s claims against Hammond, Southwest, and DRC were dismissed and
severed into a single, separate action. The combined orders constitute a final, appealable judgment
of all parties and all claims in the severed action. To the extent Appellant has raised this issue, he
has waived it. See TEX.R.APP.P. 38.1. Issue One is waived.
In Issue Five, Appellant continues to challenge the trial court’s granting of a no-evidence
summary judgment. Again, Appellant is general and conclusory, and claims “[c]learly there was
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legally sufficient evidence in support of one or more of [Appellant’s] claims/causes of action,
including for example, but not limited to, the Quiet Title, Tortuous Interference, RICO and/or
Unjust Enrichment claims.” Appellant does not demonstrate how the evidence was “clearly”
legally sufficient to support his causes of action. The three record citations and the single legal
authority referenced by Appellant within this issue do not support or relate to the legal merits of
his argument; we find this amounts to no citation or support in the record and he has failed to
provide proper legal authority. See TEX.R.APP.P. 38.1. Issue Five is waived.
B. Issues Two, Eleven, Twelve and Thirteen
In Issues Two, Twelve, and Thirteen, Appellant references improper venue, claiming venue
is proper in Andrews County, Texas, not Winkler County, Texas. Appellant states the trial court
violated mandatory statutory provisions, then quickly changes course by claiming, “Trust law is
clear, the attempted transfers of the TX & KS Trust properties are VOID and INVALID.” In his
arguments as to improper venue, Appellant discusses, at great length, how the attempted transfers
of the Texas and Kansas properties violated the Uniform Fraudulent Transfer Act, as opposed to
arguing the legal merits of his contentions as to venue. From what we can discern, Appellant
alleges Judge John L. Pool, the presiding judge of the 109th Judicial District Court of Winkler
County, Texas, was located in Andrews County, Texas on March 3, 2021, when the virtual
hearings for the motions to dismiss for want of prosecution and severance, and summary judgment,
were held. Nevertheless, Appellant filed suit in Winkler County, Texas; Appellant chose Winkler
County as the proper venue. In any case, Appellant’s failure to adequately brief why Winkler
County is an improper venue and why Andrews County is proper, and his failure to direct us where
in the record any complaint as to venue was raised and denied, waives any claimed error as to
venue.
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In Issues Eleven and Twelve, in addition to challenging venue, Appellant also claims the
trial court erred by dismissing his suit without issuing findings of fact or conclusions of law as to
the Kansas and Texas properties. Appellant provides no record citations or proper legal authority
in support of his argument.
In Issue Thirteen, in addition to challenging venue, Appellant also claims severance was
inappropriate because Appellees have “unclean hands” and are not entitled to a favorable
judgment. Again, Appellant’s contentions are conclusory, and he provides no record citations or
proper legal authority in support of his contention.
To the extent Appellant has raised these issues, he has waived them. Issues Two, Eleven,
Twelve, and Thirteen are waived. See TEX.R.APP.P. 38.1.
C. Issue Three
In Issue Three, Appellant argues the trial court erred because it did not provide him with a
jury trial, a status conference, scheduling orders, pretrial conferences, transfer orders, or due
process because he was not given notice that the trial court resumed normal operations after
closures due to COVID-19 were rescinded.
The very purpose of a summary judgment is to provide a means of summarily terminating
a case when it clearly appears that only a question of law is involved and that there is no genuine
issue of fact. G & H Towing Co. v. Magee, 347 S.W.3d 293, 296–97 (Tex. 2011). However, we
need not reach the merits of this argument because Appellant has not provided a single record
citation, and he has not cited to legal authority in support of his contentions. Issue Three is waived.
See TEX.R.APP.P. 38.1.
D. Issues Four and Eight
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In Issue Four, Appellant further argues summary judgment was improper because
discovery was incomplete, and Appellees abused the legal process and obstructed justice by not
providing requested discovery. Here too, we need not reach the merits of this argument because
Appellant has not provided a single record citation, and he has not cited to legal authority in support
of his contentions. Issue Four is waived. See TEX.R.APP.P. 38.1.
In Issue Eight, Appellant discusses RICO to challenge the granting of summary judgment
against him. Aside from failing to provide a single record citation in support of his argument,
Appellant also failed to provide coherent arguments or legal authority to support any element of
any cause of action, including RICO, against Appellees. Appellant merely provides conclusory
statements unsupported by legal citations and record citations. Issue Eight is waived. See
TEX.R.APP.P. 38.1.
E. Issue Six
In Issue Six, Appellant argues his appeal was timely filed. However, this is not at issue. In
a letter to Appellant dated August 13, 2021, we found the notice of appeal to be timely.
Accordingly, Issue Six is denied as moot.
F. Issue Seven
In Issue Seven, Appellant argues the trial court erred by not providing a hearing concerning
dismissal and severance, and by violating due process and inadequate court procedures when quiet
title ownership and property interests are at stake and a jury trial was demanded. Appellant’s
argument is best summarized by the following sentence:
Obviously, the lower Court did not make a thorough reading of
Plaintiff/Appellant’s Affidavits with Evidences (sworn to with personal
knowledge), Exhibits and pleadings NOR in it’s apparent arrogance, ever admit it’s
own failures from inadequate Court procedures (i.e. for example and not as a
limitation, no status conferences, pre-trial orders, timely rulings on motions, motion
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reinstating case after bankruptcy, etc.) and insufficient notices- (for example, the
Winkler County, TX Court should have been handling this case and should have
advised the parties that it was going to have a hearing on status of bankruptcy before
considering whether to dismiss the case for lack of prosecution), not to mention
improper venue and lack of jurisdiction.
The following sentence is one out of five sentences that comprise the entirety of this argument.
Appellant does not provide a single record or legal citation. To the extent Appellant has raised this
issue, he has waived it. See TEX.R.APP.P. 38.1. Issue Seven is waived.
G. Issue Nine
In Issue Nine, Appellant claims all attempted transfers of the vested ownership of the
Kansas and Texas properties are void under the Uniform Fraudulent Transfer Act and “Trust laws.”
However, due to Appellant’s failure to cite to the record or to legal authority, this issue is waived.
See TEX.R.APP.P. 38.1. Moreover, any claims as to real property in the state of Kansas were
properly dismissed as the trial court lacks jurisdiction over real property that lies beyond the
boundaries of Texas. Salem v. Salem, No. 01-92-00706-CV, 1994 WL 389066, at *2 (Tex.App.—
Houston [1st Dist.] July 28, 1994, no writ)(not designated for publication)(“A Texas court has no
jurisdiction over real property that lies outside the boundaries of the state.”). Issue Nine is waived.
H. Issue Ten
In Issue Ten, Appellant claims Appellees did not exhibit candor towards the tribunal,
violated attorney disciplinary and ethics rules, and committed fraud upon the court. This argument
is comprised of unsupported, conclusory statements. Appellant does not claim specific acts
committed by Appellees, but rather, utters generalized accusations such as, “[t]here are several
Motions to Compel filed by Plaintiff/Appellant in the Case Summary and exactly NONE filed by
Defendant/Appellees. This should make it clear to this Court that it was certainly not
Plaintiff/Appellant who was not cooperating with discovery matters.” Furthermore, again
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Appellant does not provide any record citation, and fails to provide proper legal authority—
Appellant only cites to federal authority, all of which fail to properly support his conclusory
contentions. To the extent Appellant has raised this issue, he has waived it. See TEX.R.APP.P. 38.1.
Issue Ten is waived.
In sum, when an appellate issue is not supported by argument or lacks citations to the record
and legal authority, nothing is presented for our review. Anderson v. Am. Credit Acceptance, No.
01-21-00110-CV, 2022 WL 7180376, at *2 (Tex.App.—Houston [1st Dist.] Oct. 13, 2022, no
pet.)(mem. op.). Although disposing of appeals for procedural defects is disfavored, and appellate
courts should reach the merits of an appeal whenever reasonably possible, we find it is not
reasonable to do so here. Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). The entirety of
Appellant’s brief lacks record and legal citations, and it does not contain substantive, coherent
analysis of the legal issues presented. See Valadez, 238 S.W.3d at 845 (noting failure to provide
citations or substantive analysis of the legal issue presented results in waiver of the complaint).
Appellant has failed to comply with Texas Rule of Appellate Procedure 38.1. Accordingly,
we hold Appellant has waived all issues on appeal. See Anderson, 2022 WL 7180376, at *2 (“We
are not responsible for identifying possible trial court error, searching the record for facts favorable
to a party’s position, or conducting legal research to support a party’s contentions.”); TEX.R.APP.P.
38.1(i)(requiring an appellant’s brief to contain clear and concise argument for contentions made,
with appropriate citations to authorities and the record).
CONCLUSION
For these reasons, we affirm. All pending motions are denied. 2
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Appellant’s motion to supplement the record filed on October 8, 2021, is denied.
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YVONNE T. RODRIGUEZ, Chief Justice
November 2, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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