Summary
observing that courts read pro se briefs broadly but may not apply a lesser legal standard
Summary of this case from Phillips v. Cullen Park ApartmentsOpinion
No. 01-02-00196-CV.
Opinion issued July 17, 2003.
Appeal from the 2d 25th District Court, Colorado County, Texas, Trial Court Cause No. 20,072.
Henry P. Massey TDC # 1159038 B2-8 Pam Lyncher State Jail 2350 Atascocita Road Humble, TX 77396, for appellant.
Mr. Neale Andersen Shields Locke Liddell Sapp LLP 3400 JP Morgan Chase Tower 600 Travis Street Houston, TX 77043, David Speed Elder Sewell Riggs 1000 Louisiana, Suite 3400 Houston, TX 77002-5007, for appelle.
Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
MEMORANDUM OPINION
Pro se appellant, Henry P. Massey ("Henry"), complains of the trial court's order directing that the remains of Henry's daughter, Courtney S. Massey ("Courtney"), be disinterred and moved to another cemetery plot within the same cemetery. The order was entered relating to the probate of the estate of Henry's mother, Dorothy P. Massey ("Dorothy"). In two issues, Henry (1) contends that Dorothy's last will and testament precludes the entry of such an order and (2) alleges that unspecified attorneys involved with this matter engaged in unethical practices.
Henry also appeared pro se in the trial court.
We affirm.
Background
Appellee, John H. Massey ("John"), as independent executor of Dorothy's estate, filed a motion for declaratory relief. John sought to have Courtney's remains disinterred from a cemetery plot ("the plot") owned by Dorothy's estate.
John is also Dorothy's son and, thus, is Henry's brother and Courtney's uncle.
The plot was one of six plots that were purchased by Dorothy's grandmother in the Masonic Cemetery for the burial of Dorothy's grandmother and grandfather, Dorothy's mother and father, and Dorothy and her husband. Dorothy's grandparents, parents, and husband predeceased Dorothy and were buried in five of the six plots. Dorothy owned the remaining, unused plot. The plot passed to Dorothy's estate when she died in 2001.
Courtney tragically and unexpectedly died in 1993. In the tragedy of the situation, Courtney was buried in the last of the six plots, the plot intended as Dorothy's place of burial.
In 1995, Dorothy wrote a letter addressed to a funeral home authorizing it to disinter Courtney's remains and re-inter them in another location within the same cemetery. Dorothy's letter was attached in support of John's motion for declaratory judgment. John also attached the affidavit of appellee, Gayle Scott Barnett, Courtney's mother, to support the motion. In her affidavit, Barnett gave her consent to disinter Courtney's remains.
As an interested party, Henry received notice of the motion for declaratory judgment. Following a hearing, the trial court signed an order on December 19, 2001. The order directed Courtney's remains to be disinterred "within fourteen days of the entry" of the order. Courtney's remains were not disinterred during that 14-day period.
On February 1, 2002, Barnett filed a "Joinder in Request for Declaratory Judgment." In the joinder, Barnett stated that she had no objection to the relief stated in the December 19th order, but she asserted that a supplemental order should be entered directing that Courtney's remains be re-interred in a different plot in the Masonic Cemetery. On February 11, 2002, the trial court signed an order directing that "upon the disinterment of the remains of Courtney S. Massey pursuant to this Court's Order dated December 19, 2001, those remains shall be re-interred in burial lot No. 431 of the Masonic Cemetery."
An appealable order in a probate proceeding need not be one which fully and finally disposes of the entire probate proceeding. Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995). Rather, when no express statute indicates otherwise, the question to ask in determining whether a probate order is appealable is whether the order disposed of each issue raised in the pleadings for that proceeding, or whether the order conclusively disposed of that phase of the proceeding. Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.App.-Austin 2000, pet. denied). Here, the December 19th order, directing the disinterment of Courtney's remains, merged into the February 11th order. At that point, the February 11th order disposed of the issue raised in the motion for declaratory relief, and the order became appealable.
Henry filed a notice of appeal on February 20, 2002.
Discussion
Issue One
In his first issue, Henry contends that Dorothy's last will and testament precluded the trial court's order granting the relief sought by John in the motion for declaratory relief. Relating to this issue, the "Background" section of Henry's briefing states, "A refilling [sic] of the Declaratory Judgment would be `illegal' under the Last Will and Testament of Dorothy P. Massey, paragraph Seventh #4." The entirety of Henry's "argument" offered in support of this issue is as follows:
Although Henry attached a copy of Dorothy's last will and testament to his brief, we may consider only those facts reflected in the record and may not look to documents attached as exhibits. See Tex.R.App.P. 38.1(f), (h); see also $429.30 v. State, 896 S.W.2d 363, 365 (Tex.App.-Houston [1st Dist.] 1995, no writ) (stating that documents attached to appellant's brief will not be considered if documents not in record).
Basis for error can be found in Salazar Canales 85 S.W.3d 859 [sic] and Johnson v. Forth Court of Appeals 700 S.W.2d 917 [sic]. The original Declaratory Judgment was precluded by the Last Will and Testament of Dorothy P. Massey. The Court[']s Order and authorization of the reinterment [sic] of the remains in a lot other than decedent Courtney S. Massey's own lot is bizzar [sic].
Although we may read the language of pro se documents broadly, we do not otherwise apply lesser standards for the benefit of pro se litigants. White v. Cole, 880 S.W.2d 292, 294 (Tex.App.-Beaumont 1994, writ denied). Pro se litigants are held to the same standards as licensed attorneys; therefore, they must comply with all applicable rules of procedure. Clemens v. Allen, 47 S.W.3d 26, 28 (Tex.App.-Amarillo 2000, no pet.); Chandler v. Chandler, 991 S.W.2d 367, 378-79 (Tex.App.-El Paso 1999, pet. denied).
Failure to brief, or to adequately brief, an issue by an appellant effects a waiver of that issue on appeal. See Tex.R.App.P. 38.1(h); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Rule of appellate procedure 38.1(h) states that a "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h). Failure to either cite authority or advance substantive analysis waives the issue on appeal. See Wheeler, 95 S.W.3d at 646. Here, Henry fails to provide any substantive analysis as to how Dorothy's last will and testament precludes the trial court's order.
Henry also fails to explain how the cases he has cited relate to this issue. Presumably, Henry has cited Salazar v. Canales, 85 S.W.3d 859, 862 (Tex.App.-Corpus Christi 2000, no pet.) and Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex. 1985) for each case's statement of the abuse-of-discretion standard of review. However, Henry failed to (1) show that such standard is the correct standard of review to apply here, (2) apply that standard to the facts of this case, or (3) explain how the trial court abused its discretion. Moreover, Salazar and Johnson are factually inapposite to this case. See Salazar, 85 S.W.3d at 862-65 (determining whether trial court abused its discretion in dismissing plaintiff's medical malpractice claims for failure to file medical-expert report); Johnson, 700 S.W.2d at 916 (deciding whether trial court has discretion to grant new trial in "the interest of justice").
Lastly, the pages in the record to which Henry refers have no bearing on the stated issue.
It is not this Court's duty to review the record, research the law, and fashion a legal argument for an appellant when he has failed to do so. Because Henry's brief does little more than summarily state his issue, without citations to appropriate legal authority or substantive analysis, it is not sufficient to acquaint this Court with the issue and does not present an argument that would allow us to decide the issue. See Wheeler, 95 S.W.3d at 646.
As a general rule, we do not favor finding waiver of an issue because the author of the brief did not comply with the briefing requirements, without giving that attorney or party the opportunity to rebrief. See Inpetco, Inc. v. Tex. Am. Bank/Houston, N.A., 729 S.W.2d 300, 300 (Tex. 1987). However, we note that Henry filed his original pro se brief and then later filed his "First Supplemental and Corrected Brief of Appellant." Both briefs contain the substantive briefing deficiencies discussed above. We fail to see how a third opportunity for Henry to brief the issue would yield a different result. Moreover, this Court has some discretion to choose between deeming a point waived and allowing amendment or rebriefing. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); Happy Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886-87 (Tex.App.-Houston [1st Dist.] 1995, no writ).
We overrule Henry's issue one.
Issue Two
In issue two, Henry complains that unspecified attorneys in this case acted unethically by failing to disclose certain facts to the trial court. Henry failed to raise this concern in the trial court, or if he did, it is not reflected in the record. As such, the issue is not properly before our Court. To preserve an issue for appellate review, an issue must be raised with the trial court. Tex.R.App.P. 33.1.
We overrule issue two.
Conclusion
We affirm the trial court's order.