Summary
affirming judgment because appellants inadequately briefed their challenge to one independent basis
Summary of this case from Bodum USA, Inc. v. J.C. Penney Corp.Opinion
No. 05-07-00982-CV
Opinion issued August 15, 2008.
On Appeal from the 422nd Judicial District Court Kaufman County, Texas, Trial Court Cause No. 68589-422.
Before Justices WRIGHT, BRIDGES, and MAZZANT.
MEMORANDUM OPINION
Appellants Frederick Thomas Kasper and Billie F. Kasper sued appellees on a variety of legal theories. Appellants appeal the summary judgment granted in favor of appellees on several different grounds. Concluding that appellants have not adequately challenged all summary-judgment grounds asserted by appellees, we affirm.
I. Background
A. Facts
The Kaspers live in a subdivision in Kaufman County called Meadowwood Park Ranch Estates. Since buying three lots in the subdivision in the late 1980s and early 1990s, they have frequently been at odds with the property owners' association. The record contains evidence that the association sued the Kaspers in 1994 and that this lawsuit ended with an agreed final judgment in 1996. According to the Kaspers' summary-judgment response, they stopped paying their property owners' association fees in 1997 to protest the association's nonenforcement and selective enforcement of certain restrictive covenants applicable to the subdivision. The record contains evidence that the association sued the Kaspers again in 1999, that the parties settled that lawsuit, and that a final judgment was signed in that litigation in January 2001.
B. Procedural history of this case
The Kaspers sued the association and its officers on a variety of legal theories, all relating in some way to the association's alleged nonenforcement and selective enforcement of restrictive covenants. They asserted claims for DTPA violations, common-law fraud, statutory fraud, negligent misrepresentation, negligence (in hiring, supervising, and managing the defendants' employees), breach of contract, breach of fiduciary duty, and declaratory judgment. Appellees answered and counterclaimed for declaratory judgment and breach of contract. They also asserted the affirmative defenses of limitations and res judicata. Appellees filed a motion for summary judgment seeking dismissal of the entire case based on their two affirmative defenses. They also filed five separate no-evidence motions for summary judgment attacking the Kaspers' claims in various combinations. The Kaspers filed a joint response to all six summary-judgment motions. The trial court granted all six motions. The Kaspers appealed. Appellees nonsuited their counterclaims, thus making the judgment final.
II. Analysis
Appellees sought summary judgment as to the entire case on the basis of the statute of limitations and alternatively on the basis of res judicata. The Kaspers raise eight issues on appeal, the first two of which address those two affirmative defenses. Their arguments in support of those two issues, however, are directed only at the limitations ground.
The Kaspers' first issue on appeal is "[w]hether the trial court erred in granting summary judgment on Appellees' affirmative defenses of Limitations and Res Judicata when Appellants complain of Appellees' ongoing acts, thus invoking the doctrine of ongoing torts." Their second issue is identical, except they substitute the word "breach" for "torts" at the end of the issue.
Under their first issue, the Kaspers argue that the "continuing-tort doctrine" defers the accrual of their causes of action for limitations purposes. For legal authority, they rely on statute-of-limitations cases and cite no res-judicata cases. They present no argument or legal authority in support of the proposition that the "continuing-tort doctrine" is a legal basis for avoiding the affirmative defense of res judicata. Nor do they cite any record evidence to show specific facts that would support their "continuing-tort" theory or that would otherwise defeat the defense of res judicata. Instead, they argue only that the "continuing-tort doctrine" extends the accrual of their claims for limitations purposes and conclude summarily that their claims "are not barred by any limitation or res judicata."
The Kaspers' argument under their second issue consists almost entirely of verbatim extracts from their argument under the first issue. Again, the Kaspers present no argument in support of the proposition that "ongoing breach" is a ground for avoiding res judicata, nor do they cite any legal authorities or parts of the record to buttress that proposition.
An appellant must do more than merely assert an issue or list of issues broad enough to cover all possible summary-judgment grounds. An appellant must also present arguments, supported with citations to legal authority and to the record, to demonstrate his or her entitlement to reversal. See McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). Issues that are not supported by argument, citations to authority, or citations to the record do not preserve error for review. Murphy v. Mullin, Hoard Brown, L.L.P., 168 S.W.3d 288, 293 (Tex.App.-Dallas 2005, no pet.). Because of the deficiencies described above, we conclude that the Kaspers' first two issues present nothing for our review as to appellees' summary-judgment ground of res judicata. If summary judgment was granted, whether properly or improperly, on a ground not challenged on appeal, the judgment must be affirmed. Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.-Dallas 1992, writ denied). Because the Kaspers present no viable appellate issue challenging the summary-judgment ground of res judicata, and because that ground encompassed the entire case, we affirm the summary judgment in appellees' favor.
III. Conclusion
Because the Kaspers did not adequately challenge the summary-judgment ground of res judicata on appeal, we affirm the trial court's judgment.