Carrie Ann Elisondo Berry v. Juan A. Espinoza, Individually and as Administrator of the Estate of Evangelina Flores Saenz ( 2020 )

Affirmed and Memorandum Opinion filed February 13, 2020.
In The
Fourteenth Court of Appeals
NO. 14-18-01060-CV
CARRIE ANN ELISONDO BERRY, Appellant
V.
JUAN A. ESPINOZA, INDIVIDUALLY AND AS ADMINISTRATOR OF
THE ESTATE OF EVANGELINA FLORES SAENZ, DECEASED, Appellee
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Cause No. 454323-401
MEMORANDUM OPINION
We consider two questions in this appeal: (1) whether proof from a
handwriting expert is necessary to establish a forgery, and (2) whether mental-
anguish damages may be recovered in a claim for “compassion fatigue.” For reasons
explained more fully below, our answer to both of these questions is “no.”
BACKGROUND
In the course of administering his deceased mother’s estate, Juan Espinoza
sued his sister, Carrie Berry, alleging among other things that Berry had forged the
signatures on multiple deeds, including one deed that she had notarized herself.
Espinoza also sued an insurance company, which had posted a bond guaranteeing
Berry’s services as a notary. The insurance company settled with Espinoza, but
Berry, proceeding pro se, asserted a counterclaim against Espinoza for compassion
fatigue, seeking damages for having been their mother’s sole caretaker in her final
years.
Espinoza filed two motions for partial summary judgment, seeking to quiet
title to the two properties in dispute. In both motions, Espinoza relied on evidence
from lay witnesses to show that the signatures on the deeds had been forged. Berry
did not respond to either motion.
The trial court granted both motions, and at a later hearing, the trial court ruled
that Berry’s claim for compassion fatigue was not actionable as a matter of law.
After a bench trial on attorney’s fees, the trial court merged these various rulings
into a final judgment, from which Berry now appeals.
ANALYSIS
Berry continues to prosecute this case without legal representation, and her
brief is somewhat difficult to follow. She asserts five issues in the “Issues Presented”
portion of her brief, and a completely different set of issues in her “Summary of the
Argument.” As for the “Argument” section, Berry complains of only two issues. We
limit our review to the two argued issues because Berry has not adequately briefed
the others and so has waived merits review of them. See San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 337 (Tex. App.—Houston [14th Dist.] 2005, no
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pet.); Fox v. Alberto, 455 S.W.3d 659, 663 n.1 (Tex. App.—Houston [14th Dist.]
2014, pet. denied).
Berry begins her first issue with this assertion: “The trial court erred in
awarding [Espinoza] a Partial Summary Judgment for Fraud Based on Forgery.”
Berry does not identify which of the two motions (or both) that she is challenging,
nor does she specifically explain why the summary judgment was improper. And in
a follow-up sentence, her focus shifts away from the summary judgments to
Espinoza’s settlement with the insurance company, which she attacks in these words:
“There is no evidence of forgery in the record to support the grounds for a settlement
and approving a Compromise and Settlement Claim . . . without proper significant
evidence from [a] Forensic Handwriting Expert or witness who will testify that
he/she saw [Berry] prepare, notarize and sign [Espinoza’s] name.”
If we liberally construe these quoted sentences, which compose nearly the
entirety of her argument, Berry appears to be arguing that we must set aside both the
summary judgments and the settlement because there was no expert evidence that
she had actually forged the signatures on any of the deeds in question. This argument
fails on the merits because expert proof is not necessary in civil cases to establish a
forgery. See Kindsfather v. Green, No. 01-06-01111-CV, 2008 WL 2186402, at *3
(Tex. App.—Houston [1st Dist.] May 22, 2008, no pet.) (mem. op.) (as proof of a
forgery, the summary-judgment movant relied on the affidavit testimony of a notary
to establish that the grantor of a deed had not appeared before him); see also Tex. R.
Evid. 901(b)(2) (providing that handwriting may be authenticated with the opinion
testimony of a nonexpert). The same holds true in criminal cases. See Garner v.
State, 272 S.W. 167, 169 (Tex. Crim. App. 1925) (“Where a witness shows himself
to be familiar with the handwriting of one whose signature is under investigation, he
is permitted to give his opinion relative thereto regardless of whether or not he be an
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expert in handwriting; such evidence being regarded by all the textwriters as in the
nature of primary evidence.”). We overrule Berry’s first issue.
In her second issue, Berry complains about the trial court’s ruling that she may
not recover any mental-anguish damages under a theory of compassion fatigue.
Berry had pleaded that Espinoza was liable for these damages because he never
“offered nor contributed in any way, shape or form, to the well being of his Mother,”
and because he left the burdens of caretaking to Berry instead. Insofar as Berry
alleged that Espinoza was negligent, the trial court correctly ruled that, as a matter
of law, mental-anguish damages are not recoverable. See Boyles v. Kerr, 855 S.W.2d
593, 597 (Tex. 1993) (“There is no general duty not to negligently inflict emotional
distress.”). And insofar as Berry has advocated for the recognition of a new claim,
where mental-anguish damages might be recoverable, Berry has not addressed any
of the factors that a court must analyze before it expands the landscape of individual
liability. See Kinsel v. Lindsey, 526 S.W.3d 411, 423 n.6 (Tex. 2017). Because Berry
has not provided argument or analysis of the factors, she has not adequately briefed
the issue. See Solis v. S.V.Z., 566 S.W.3d 82, 103 (Tex. App.—Houston [14th Dist.]
2018, pet. filed) (declining to recognize a new claim where the claimant failed to
address the necessary factors in her brief). We overrule appellant’s second issue.
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
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