Affirmed and Opinion Filed October 9, 2018




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00648-CV

                 IN THE ESTATE OF JOHN M. HOUSTON, DECEASED

                          On Appeal from the Collin County Probate
                                   Collin County, Texas
                            Trial Court Cause No. PB-001-56605

                             MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Bridges
       Linda Houston appeals the trial court’s judgment granting the traditional and no-evidence

motion for summary judgment of Eileen Houston and ordering that Linda take nothing. In nine

issues, Linda argues (1) she was “estopped from the material facts of the Estate Interests” when

Eileen ignored demands for an estate and trust accounting; (2) the trial court erred in failing to

“recognize the request for Estate Accounting by Motion And by Hearing Request”; (3) Eileen used

a “no-evidence motion” to improperly shift the burden of proof to Linda, and Eileen had a duty to

“disclose information as Fiduciary”; (4) Eileen continued to receive certain oil and gas royalties

in the name of the John M. Houston estate and “file them in her personal taxes” even though “all

assets were designated to become a part of, and distributed per, the terms of the Trust Instrument”;

(5) Eileen knowingly and improperly appointed herself as “Successor Trustee”; (6) Eileen

knowingly and improperly appointed herself as “Beneficiary”; (7) Eileen never provided responses

to interrogatories; (8) Eileen was subpoenaed and failed to appear for a scheduled deposition; and
(9) the trial court erred in proceeding without a response to Linda’s “Motion to Order Eileen

Houston to Appear for Oral Deposition.” We affirm the trial court’s judgment.

       In August 2005, Eileen filed an application for probate of the will of John M. Houston, her

deceased husband. In September 2005, the probate court admitted the will to probate and ordered

that letters testamentary should issue to Eileen, who was appointed independent executrix of the

will. In December 2005, Eileen filed with the probate court an inventory, appraisement, and list

of claims of the estate.

       In September 2014, Eileen and John’s daughter Linda filed a petition seeking to remove

Eileen as independent executrix. Linda alleged that, in August 2013, she discovered the existence

of trust accounts created by John before his death under which Linda was to become the sole

trustee upon John’s death. Linda alleged she confronted Eileen in November 2013, and Eileen

admitted the existence of the trust accounts and admitted to “acts of defalcation and other

inappropriate acts as trustee.” Linda further alleged Eileen used letters testamentary to transfer

property and funds and disburse property for Eileen’s sole benefit. Linda sought to have Eileen

removed as independent executrix, alleged Eileen breached her fiduciary duty, requested an

accounting of the estate, and requested actual and punitive damages.

       In January 2016, Linda filed her third amended petition in which she alleged Eileen forged

Linda’s name on a check requiring both Eileen’s and Linda’s signatures; Eileen reported receiving

income from the underlying trusts on her personal tax returns, thereby avoiding reporting the

transfers of income to Linda; and Eileen failed to disclose information material to Linda’s interest

in the trusts, necessitating an accounting of all Eileen’s actions with respect to the trusts and John’s

estate. Linda asserted claims of breach of fiduciary duty, tortious breach of fiduciary duty, tortious

interference with inheritance, violation of the Texas Civil Theft Act, conversion, money had and

received, and common law fraud. Linda argued a constructive trust for Linda’s benefit should be

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imposed on any property or assets acquired by Eileen because, otherwise, Eileen would be unjustly

enriched. Linda sought actual damages, lost profit damages, lost opportunity damages, punitive

damages, attorney’s fees and expenses, and pre- and post-judgment interest.

       In September 2016, following a partial settlement agreement and a joint partial motion to

dismiss, the trial court, among other things, dismissed with prejudice Linda’s actions concerning

(1) Eileen’s transfers of funds from Linda’s trust accounts to Eileen’s personal accounts and (2)

the amount of the check with “alleged signature forged.” The trial court also dismissed with

prejudice Linda’s causes of action for breach of formal and informal fiduciary duties, tortious

breach of fiduciary duty, tortious interference with inheritance, violation of the Texas Civil Theft

Act, conversion, money had and received, common law fraud, and unjust enrichment and

constructive trust.

       By order dated January 18, 2017, the trial court granted Eileen’s second traditional and no-

evidence motions for summary judgment and ordered that Linda take nothing on her claims against

Eileen. Nevertheless, on February 2, 2017, Linda filed a notice of intent to take Eileen’s deposition

and a request for a subpoena duces tecum requiring Eileen to produce certain documents. Eileen

filed a motion to quash and for protective order on the grounds that, in light of the trial court’s

order granting Eileen summary judgment on all of Linda’s causes of action, the subject matter of

the deposition and subpoena were no longer relevant. On March 8, 2017, the trial court granted

Eileen’s motion to quash and for protective order. On May 1, 2017, the trial court signed a final

judgment ordering that Linda take nothing on her claims against Eileen. This appeal followed.

       We note that his Court, by letter dated February 14, 2018, notified Linda that her pro se

brief did not comply with the rules of appellate procedure and warned her that failure to file an

amended brief could result in dismissal of this appeal without further notice. Specifically, Linda’s

brief failed to contain a concise statement of the case, the course of proceedings, and the trial

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court’s disposition of the case supported by record references. Linda failed to file an amended

brief. Instead, Linda filed both a reply brief and a sur-sur-reply brief in which she also failed to

set forth a concise statement of the facts supported by record references.

       We construe liberally pro se pleadings and briefs; however, we hold pro se litigants to the

same standards as licensed attorneys and require them to comply with applicable laws and rules of

procedure. In re N.E.B., 251 S.W.3d 211, 211–12 (Tex. App.—Dallas 2008, no pet.) (citing

Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.1978)). To do otherwise would give

a pro se litigant an unfair advantage over a litigant who is represented by counsel. Id. at 212. 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 contentions made with appropriate citations

to authorities and the record. TEX. R. APP. P. 38.1; In re N.E.B., 251 S.W.3d at 212. Bare assertions

of error, without argument or authority, waive error. In re N.E.B., 251 S.W.3d at 212; see also

Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court

has discretion to waive point of error due to inadequate briefing). When a party fails to adequately

brief a complaint, he waives the issue on appeal. In re N.E.B., 251 S.W.3d at 212.

       Linda has failed to provide us with argument, analysis, or authorities that make her

complaints on appeal viable. Id. By failing to adequately brief her complaints, Linda has waived

our review of her complaints. See id.

       Moreover, the record in this case is clear that the trial court granted Eileen’s traditional and

no-evidence motions for summary judgment. The trial court’s final judgment referenced the order

granting summary judgment in favor of Eileen and entered judgment in accordance with that order.

However, Linda’s request for a clerk’s record did not request inclusion of Eileen’s summary

judgment motions, and the motions are not in the record. Absent a complete record of the summary

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judgment evidence, an appellate court must assume that the omitted documents support the

judgment of the trial court. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990).

Furthermore, when the summary judgment does not state the grounds upon which it was granted,

the nonmovant must show on appeal that each independent ground alleged is insufficient to support

the summary judgment granted. Caldwell v. Curioni, 125 S.W.3d 784, 789 (Tex. App.—Dallas

2004, pet. denied). To the extent Linda raises, in her first seven issues, claims disposed of by the

trial court’s summary judgment, we must assume the omitted documents support the trial court’s

judgment. See DeSantis, 793 S.W.2d at 689. To the extent Linda complains, in her eighth and

ninth issues, of Eileen’s failure to appear for a deposition after the trial court granted summary

judgment and the trial court’s proceeding thereafter, Linda has cited no authority, and we have

found none, supporting the proposition that depositions and discovery may continue after a trial

court has granted summary judgment. We overrule Linda’s first, second, third, fourth, fifth, sixth,

seventh, eighth, and ninth issues.

       We affirm the trial court’s judgment.




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE



170648F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE ESTATE OF JOHN M.                            On Appeal from the Collin County Probate,
 HOUSTON, DECEASED                                   Collin County, Texas
                                                     Trial Court Cause No. PB-001-56605.
 No. 05-17-00648-CV                                  Opinion delivered by Justice Bridges.
                                                     Justices Francis and Lang-Miers
                                                     participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Eileen Houston recover her costs of this appeal from
appellant Linda Houston.


Judgment entered October 9, 2018.




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