Opinion
NO. 02-11-00094-CV
06-07-2012
GERARD JARAMILLO, KHOSROW SADEGHIAN, AND RERAM INC. APPELLANTS v. SHAHAN PRAIRIE ROAD JV AND JOHN W. HARVEY APPELLEES
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellants Gerard Jaramillo, Khosrow Sadeghian, and ReRam Inc. appeal from the trial court's summary judgment in favor of Appellees Shahan Prairie Road JV and John W. Harvey on Appellants' easement claim. In three points, Appellants argue that the trial court erred by granting summary judgment on the grounds of res judicata and collateral estoppel and by awarding Appellees attorney's fees under the Uniform Declaratory Judgment Act (UDJA). Because we overrule all of Appellants' points as inadequately briefed, we affirm.
Appellants' brief identifies this party as "Fogg Hendershot (formerly known as Gerard Jaramillo)." We will refer to this party as Jaramillo.
The dispute in this case involves real property in Little Elm, Texas, which was divided into two lots and sold at a sheriff's auction. The Denton County Sheriff apparently deeded one of the properties (Lot A) to ReRam Inc., and Appellee John Harvey acquired the other property (Lot B). Sadeghian sued Harvey and Nancy Harvey to obtain an easement over Lot B for access to a well and septic system on Lot A. After that suit was unsuccessful, ReRam filed suit against Harvey seeking an easement on Lot B; the easement sought in that case was for water, sewer, gas, and ingress and egress. After that suit was unsuccessful, Jaramillo filed this suit, claiming to be ReRam's successor-in-interest and seeking an access easement on Lot B. The trial court granted Harvey leave to file a third-party petition against Sadeghian and ReRam. Neither Appellants nor Appellees explain in their briefs what interest Shahan Prairie Road JV has in Lot B or why Jaramillo sued that entity.
Sadeghian v. Harvey, No. 02-05-00294-CV, 2006 WL 1452577, at *1 (Tex. App.—Fort Worth May 25, 2006, pet. denied).
Id.
Harvey filed a counterclaim and a motion for summary judgment (1) asserting that Jaramillo did not have standing and that the doctrines of res judicata and judicial estoppel barred his suit and (2) seeking declaratory relief that Sadeghian owned Lot A and that anyone claiming title through him was not entitled to any easement. The trial court granted the motion and rendered final judgment declaring that Sadeghian was the previous owner of Lot A and that Appellants "and anyone claiming title through them are not entitled to any easements" burdening Lot B. The trial court also awarded Appellees attorney's fees. Appellants then brought this appeal.
On July 12, 2011, this court notified Appellants that their brief did not conform to the rules of appellate procedure. We informed Appellants that, among other defects, the brief did not comply with rules 38.1(d), (g), and (i) because it did not contain record references in either the statement of the case or the statement of facts and did not contain appropriate citations to the record in support of the arguments made. We requested that Appellants file an amended brief, and we notified them that their failure to timely file a compliant amended brief could result in this court striking the brief, waiving noncomplying points, or dismissing the appeal.Appellants did not file an amended brief.
See Tex. R. App. P. 38.1(d), (g), (i).
See Tex. R. App. P. 38.9(a), 42.3(b).
As for Appellants' first point, under which they argue that the trial court erred by granting summary judgment based on res judicata, we are unable to determine whether the point has any merit. The application of res judicata requires "(1) a prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were or could have been raised in the first action." Thus, for the trial court to have erred by granting summary judgment based on res judicata, the record would have to show (1) that Appellees failed to produce evidence of a final determination on the merits by a court of competent jurisdiction; (2) that Appellees failed to show that the parties in this suit were the same in the prior litigation or that Jaramillo was in privity with parties to the prior litigation; or (3) that Jaramillo's suit in this case was not based on the same claims that were or could have been raised in the prior litigation.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
Seeid.
Regarding the third element, Appellants argue that a fact question exists on whether Jaramillo's suit is based on claims that could have been raised in the previous suits. They claim that the dispute in this case was over the encroachment of a fence, that until the fence was constructed there was no cognizable dispute regarding access to Lot A, and that because the fence had not been built until after final resolution of the previous litigation, Jaramillo could not have brought the claim in those suits.
Appellants do not direct this court to a place in the record where we might find evidence relating to the prior litigation from which we could determine whether Jaramillo's claims in the case could have been raised in the prior litigation. For an issue or point to be properly before this court, the issue or point must contain appropriate citations to the record. We do not have a duty to conduct an independent review of the record to determine whether the error complained of occurred. Appellants name a few documents that they assert exist in the record and support their first point, but these references do not direct us to a place in the record where these documents may be found. And most of Appellant's factual assertions do not give even a general idea of where in the record we may find evidence to support them. Regarding the few documents referenced by Appellants, they do not direct this court to any particular place in the record where those documents may be found, and they do not direct us to where in the record we could find any other evidence to determine whether their point has merit or to indicate what that evidence might be. We therefore hold that Appellants' argument is inadequately briefed.
See Tex. R. App. P. 38.1(f), (i); see also Allegiance Hillview, L.P. v. Range Tex. Prod., LLC, 347 S.W.3d 855, 873 (Tex. App.—Fort Worth 2011, no pet.) ("An appellate brief must contain argument and the authorities and facts relied upon for the appeal with references to the pages in the record where those facts can be found.").
Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex. App.—Fort Worth 2004, pets. denied).
See Tex. R. App. P. 38.1(f), (i); Allegiance Hillview, 347 S.W.3d at 873.
Furthermore, although Appellants argue that this suit is about a fence that had not been built at the time of the prior easement suits, Appellants provide us with no discussion of what claims were at issue in the prior cases and why the claim Jaramillo brought in this case was not and could not have been brought in those cases. Even if the fence Appellants complain about was not built until after final judgment in the prior litigation, we cannot determine from Appellants' brief why the date of the fence's construction has any relevance to the application of res judicata. Reversing the trial court's judgment would require us to conduct an independent review of the record and then make Appellants' argument for them. We decline to do so.
Appellants further argue that Appellees had argued in a prior case that Sadeghian did not have standing to bring the suit in that case, from which Appellants conclude that "therefore, that court was without subject matter jurisdiction" and "[t]hus, the decision of the prior court is not one of competent jurisdiction." We construe this part of Appellants' brief as arguing that Appellees failed to prove the existence of a prior final determination on the merits by a court of competent jurisdiction. But Appellants do not tell us whether it was determined in that case that the trial court did not have jurisdiction, and they cite us to nothing from which we could determine for ourselves whether that court had jurisdiction. And Appellants make no argument (and cite no authority) about why Appellees' argument about Sadeghian's standing in the prior case means that res judicata cannot apply here. We additionally hold that this argument is inadequately briefed.
See Tex. R. App. P. 38.1(d), (g), (i).
Finally under this point, Appellants argue that the trial court erred by granting the motion for summary judgment "because [Appellants] raised a material and substantial fact issue on the element of title (that is, Appellees' failure to record any prior judgment estoppes [sic] them from claiming title into or from Sadeghian in opposition to the record ownership of Jaramillo)." Appellants make no further explanation about their argument and do not cite any law to show why Appellees' failure to record a prior judgment means that res judicata does not apply. Furthermore, Appellants do not direct us to anywhere in the record we may find support for this argument. We conclude that this point is inadequately briefed, and, accordingly, we overrule this point.
Seeid.
In their second point, Appellants challenge the trial court's grant of summary judgment on the ground of collateral estoppel, but, again, they do not direct this court to a place in the record showing what facts or issues were involved in the prior litigation or in the trial court in this suit. But more importantly, Appellants' second point is moot. Although Appellants did not provide any record references enabling us to find the grounds for Appellees' summary judgment motion, Appellees direct us to the page in the record where their motion for summary judgment appears. As Appellees point out in their brief, they asserted judicial estoppel in their summary judgment motion, not collateral estoppel. We therefore conclude that not only is this point inadequately briefed, it is moot.
SeeFredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (discussing the "long-standing rule" that a point may be waived due to inadequate briefing).
In their third point, Appellants argue that "[n]either Appellees' claim for the application of res judicata nor the claim for collateral estoppel are cognizable under the [UDJA]; therefore, the trial court committed error in granting Appellees' motion for summary judgment . . . particularly the award of attorney's fees." Appellants first recite the substance of civil procedure rule 94. They then set out two paragraphs of argument, which we include here, excluding citations to authority:
A declaratory judgment . . . is appropriate if a justiciable controversy exists as to the rights and status of the parties and if the controversy will be resolved by the declaration sought. Determining whether a court has jurisdiction over a declaratory-judgment action is a question of law and is subject to de novo review. The [UDJA] gives an individual whose rights and legal relations are at issue in a contractual dispute a vehicle where he can solicit the court to resolve questions of construction or validity under a contract.
In the instant case, Appellees did not seek, and could not have sought, a declaration of rights, or construction, under the judgment or any written agreement . . . given its plain and unambiguous language. Therefore, absent a justiciable issue, the trial court did not have subject matter jurisdiction under the [UDJA] and any award of attorney's fees is likewise unsupportable and unsustainable. [Ellipses in original text.]
We are unclear what Appellants' argument is here. Appellants cite no references to any evidence in the record that would make their argument clear or that would demonstrate error. They cite no authority for their contention that Appellees could not seek the declarations they requested in this case. We do not know which specific "judgment or . . . written agreement" Appellants refer to, whether that unknown document's language is "plain and unambiguous," or why Appellants believe that the trial court may not construe a plain and unambiguous instrument under the UDJA. We conclude that this point is also inadequately briefed, and we overrule it on that basis.
See Tex. R. App. P. 38.1(f), (i); see also Allegiance Hillview, 347 S.W.3d at 873.
See Tex. R. App. P. 38.1(i).
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Having overruled each of Appellants' three points, we affirm the trial court's judgment.
PER CURIAM PANEL: DAUPHINOT, WALKER, and MCCOY, JJ. WALKER, J., concurs without opinion.