Charles Mitchell v. Ruth Houston

In a pro se lawsuit filed against his sister, appellant Charles Mitchell asserted that

appellee Ruth Houston had unlawfully dispossessed him of his real and personal property with

an invalid power of attorney. After receiving an adverse judgment, appellant filed a pro se

appeal raising three issues: (1) the durable power of attorney is not legally enforceable;

(2) appellant was deprived of his liberty, property, and privileges in violation of the Texas

Constitution; and (3) the trial court abused its discretion in excluding the fourth requirement of

Section 482 of the Texas Probate Code. We affirm.

BACKGROUND

In his pleadings, appellant alleged that he resided with his mother, Mrs. Albert Mitchell,

at her home. In July 2009, Mrs. Mitchell was hospitalized and subsequently placed in a nursing –2–

home. Mrs. Mitchell was later diagnosed with dementia and Alzheimer's Disease. When

appellant was released from jail, he wanted to return to his mother's house. Appellee testified

that she told appellant's parole officer that he could not go to the house because their mother was

in the hospital and she feared he would steal from the house. Appellee also testified that her

mother did not want appellant living in her home. Appellant and appellee's father, Charles H.

Mitchell, testified that Mrs. Mitchell felt threatened by appellant due to appellant's drug

addiction.

Appellee testified that a social worker suggested having Mrs. Mitchell sign a power of

attorney. Appellee testified that Mrs. Mitchell initialed the power of attorney and appellee had

the form notarized. The power of attorney dated September 30, 2009, granted a general power of

attorney to appellee. Appellee further testified that she used the power of attorney to access her

mother's bank accounts to pay her mother's bills while Mrs. Mitchell was in the nursing home.

In October 2009, an altercation occurred at Mrs. Mitchell's residence between appellant,

appellee, and appellee's son, Christopher Houston. Appellant armed himself with a hatchet and

a knife and told Houston and appellee to get out of his yard. Appellant was arrested, convicted

of aggravated assault, and sentenced to seven years' imprisonment as a result of this altercation.

On November 21, 2011, appellant filed a lawsuit against appellee and Christopher

Houston. Following a bench trial, the trial court entered a judgment in favor of defendants.

Appellant then filed this appeal.

ANALYSIS

A. Appellant Failed to Preserve His Argument Regarding the Durable Power of

Attorney

Appellant argues that Mrs. Mitchell's durable power of attorney was not valid because it

did not fulfill the requirements of a durable power of attorney. Specifically, appellant argues that

the document was not acknowledged by the principal before an officer authorized to take –3–

acknowledgements for deeds of conveyance. This argument, however, was not made during trial

and is raised for the first time on appeal. As appellant did not offer any evidence or argument

regarding signature before a notary at trial, he has failed to preserve this issue for review. See

TEX. R. APP. P. 33.1; Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 681 (Tex. 2000)

(merger clause defense to seller's fraud claim not preserved for failure to assert it in trial court).

Accordingly, we resolve this issue against appellant.

B. Appellant Waived His Argument Regarding Violation of His Constitutional

Rights

Appellant also argues that he was deprived of his property in violation of section 19 of

the Texas Constitution. We start with the admonition that an appellant's brief must contain a

clear and concise argument for the contentions made and citations to authorities and the record.

TEX. R. APP. P. 38.1(i). Rule 38 requires a party to provide us with such discussion of the facts

and authorities relied upon as may be necessary to present the issue. Gonzalez v. VATR Const.

LLC, 418 S.W.3d 777, 784 (Tex. App.—Dallas 2013, no pet.). Inadequate briefing results in

waiver of the complaint. Dunmore v. Chicago Title Ins. Co., 400 S.W.3d 635, 644 (Tex. App.—

Dallas 2013, no pet.). Although we construe pro se pleadings and briefs liberally, we hold pro se

litigants to the same standards as licensed attorneys and require them to comply with the

applicable laws and rules of procedure. In re N.E.B, 251 S.W.3d 211, 211–12 (Tex. App.—

Dallas 2008, no pet.); see also Gonzalez, 418 S.W.3d at 784 ("Appellate courts must construe

briefing requirements reasonably and liberally, but a party asserting error on appeal still must put

forth some specific argument and analysis showing that the record and the law support his

contention.”). To do otherwise would give a pro se litigant an unfair advantage over a litigant

who is represented by counsel. In re N.E.B., 251 S.W.3d at 212.

The entire argument for this issue consists of six sentences without reference to any case

law. Appellant does not offer any legal analysis or discussion regarding this supposed –4–

constitutional violation. Appellant has failed to provide us with argument that is sufficient to

make his appellate complaint viable. See Howell v. T S Commc'ns, Inc., 130 S.W.3d 515, 518

(Tex. App.—Dallas 2004, no pet.). Appellant's failure to adequately brief this issue results in

waiver of this complaint on appeal. See TEX. R. APP. P. 38.1(h); Washington v. Bank of New

York, 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.) ("The law is well established that,

to present an issue to this Court, a party's brief shall contain, among other things, a concise,

nonargumentative statement of the facts of the case, supported by record references, and a clear

and concise argument for the contention made with appropriate citations to authorities and the

record.”); In re N.E.B., 251 S.W.3d at 212 ("When a party fails to adequately brief a complaint,

he waives the issue on appeal.”); Gonzalez, 418 S.W.3d at 783 ("The failure to provide

appropriate record citations or a substantive analysis waives an appellate issue.”). For these

reasons, we resolve this issue against appellant.

C. The Trial Court Did Not Abuse its Discretion

In his last issue, appellant argues that the trial court abused its discretion by holding that

the durable power of attorney was enforceable when the document was not signed by Mrs.

Mitchell before a notary. As noted above, however, appellant did not raise this argument before

the trial court and failed to preserve such argument on appeal. As such, appellant cannot

backdoor an argument through abuse of discretion when the argument fails on its face for the

reasons discussed above. Accordingly, we resolve this issue against appellant.

Judgment entered this 10th day of February, 2015.

We resolve appellant’s issues against him and affirm the trial court’s judgment.