                                   NO. 07-04-0262-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                SEPTEMBER 10, 2004
                          ______________________________

                                ALEX RAY STAFFORD,

                                                               Appellant

                                             v.

      EDDIE STAFFORD, INDEPENDENT ADMINISTRATOR of the ESTATE of
                      ALEX STAFFORD, DECEASED,

                                                      Appellee
                        _________________________________

                 FROM THE COUNTY COURT OF DALLAM COUNTY;

                     NO. 1982; HON. DAVID D. FIELD, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Alex Ray Stafford (Alex Ray) appeals from a final judgment entered in favor of Eddie

Stafford, as the independent administrator of the estate of Alex Stafford, deceased (Eddie).

Eddie had initiated a forcible entry and detainer action against Alex Ray to remove the

latter from real property located in Dallam County. The local justice of the peace granted

Eddie the relief he sought. Thereafter, Alex Ray appealed to the County Court of Dallam

County. A trial de novo was had, after which judgment was again awarded Eddie. Acting
pro se, Alex Ray asserts seven issues before us. The first concerns whether he was

denied due process because both trial courts allegedly barred him from offering

“evidentiary documents into the record” or making “any oral statements on the record.”

The last six involve whether the trial court erred when it purportedly failed to follow the law

of the case, i.e. an opinion we rendered in another cause but apparently involving the same

realty. We affirm the judgment of the trial court.

                                                Issue 1 - Due Process

         Regarding the matter of due process, we overrule the issue for several reasons.

First, whether the justice court afforded Alex Ray opportunity to present oral argument and

documentary evidence is moot, for he was accorded a trial de novo in the Dallam County

Court.1 In short, it matters not what occurred in the justice court given the de novo trial

conducted by the county court.

             Next, Alex Ray failed to cite to authority or the record. Such is required by Rule

38.1(h) of the Texas Rules of Appellate Procedure.2 This, consequently, results in the

waiver of his complaint. In re B.A.B., 124 S.W.3d 417, 420 (Tex. App.–Dallas 2004, no

pet.).

         Third, the appellate record contains neither a reporter’s record of the trial nor a

document illustrating that Alex Ray requested one.3 The burden lay with him, as the


         1
             Appeal from the jus tice court to th e county c ourt entitle s th e party to a trial de n ovo . T EX . R. C IV . P.
574 b.

         2
          A pro se litigant is obligated to comport with the rules of procedure just as one represented by an
attorney is required to com ply with them . Ho lt v. F.F. Ente rprise s, 990 S.W .2d 756, 759 (Tex. App.–Am arillo
1998, pet. ref’d).

         3
          W hile Alex R ay state s th at no re porter’s record was made of the pro ceedings, h e does not c om plain
of that on app eal. Th us, we do not address whether the act, assuming of course that it is true, constituted
error.

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appellant, to present us with a record showing reversible error. Englander Co. v. Kentucky,

428 S.W.2d 806, 807 (Tex. 1968); American Paging of Texas, Inc. v. El Paso Paging, Inc.,

9 S.W.3d 237, 240 (Tex. App.–El Paso 1999, pet. denied); Cliff v. Bonner, 770 S.W.2d 97,

98 (Tex. App.–Corpus Christi 1989, writ denied). Without a reporter’s record, we have no

way of verifying the truthfulness of Alex Ray’s version of what occurred at the trial. Indeed,

its absence requires us to presume that the missing record actually supports the trial

court’s actions, if any. Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.–Houston [1st Dist.]

1999, no pet.); see In re Spiegel, 6 S.W.3d 643, 646 (Tex. App.–Amarillo 1999, no pet.).

(holding that because the appellant did not request the reporter’s record, the appellate

court must presume that the missing record supported the trial court’s decision). Thus, we

presume that the missing record legitimized what, if anything, the trial court did with regard

to the admission of evidence and the limitation on argument.

                      Issues 2, 3, 4, 5, 6, and 7 - Law of the Case

       The remaining issues before us concern the effect of an opinion we rendered on

March 14, 1995, in cause number 07-94-0178-CV, styled Martin Stafford, Trustee of A.M.

& J. Trust v. Eddie Stafford, Independent Administrator of the Estate of Alex Stafford.

Therein, we held, according to Alex Ray, that the estate of Alex Stafford did not own the

land in question. Furthermore, this decision purportedly constituted the law of the case

and bound the hands of both the justice and Dallam County courts in this proceeding. We

overrule the issues for several reasons.

       First, to the extent that Alex Ray sought to defeat the forcible entry suit by

contending that Eddie did not own the property, neither the justice nor the county court had




                                              3
the jurisdiction to decide ownership. Rice v. Rainey, 51 S.W.3d 705, 708-09 (Tex. App.–

Dallas 2001, no pet.) So, we cannot fault them for opting not to address that issue.

       Second, the concept known as law of the case applies only to subsequent

proceedings in the same case after an appeal has been taken and the cause remanded.

Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Hallmark v. Hand, 885 S.W.2d

471, 474 (Tex. App.–El Paso 1994, writ denied). The forcible entry and detainer action

between Eddie and Alex Ray, initiated in the justice court for Dallam County, and assigned

cause number 4971, was not the same case as that from which arose our March 14, 1995

decision.

       Third, the March 14, 1995 opinion was not our last involving the dispute between

Martin Stafford, as trustee of A.M. & J. Trust, and Eddie Stafford, as independent

administrator of his father’s estate. We issued another on October 28, 1998, in cause

number 07-97-0494-CV and affirmed the decision of the trial court. The latter had held that

the property allegedly transferred to Martin Stafford, as trustee, reverted to Alex Stafford

or his estate. Furthermore, the Texas Supreme Court denied Stafford’s request to review

our decision. Consequently, the holding in our March 14th opinion, and upon which Alex

Ray heavily relies, was effectively superceded; it constituted no foundation for his

argument.

                                    Frivolous Appeal

       Finally, Eddie moved, in his appellee’s brief, for sanctions against Alex Ray for the

filing of a frivolous appeal. We grant the motion.

       Rule 45 of the Texas Rules of Appellate Procedure authorizes us to sanction an

appellant if we determine that the appeal was frivolous. TEX . R. APP. P. 45. Whether to


                                             4
do so, however, lies within our discretion. Rios v. Northwestern Steel & Wire Co., 974

S.W.2d 932, 936 (Tex. App.–Houston [14th Dist.] 1998, no pet.). In exercising that

discretion, we 1) may not consider any matter that does not appear in the record, briefs,

or other papers filed in the court of appeals, TEX . R. APP. P. 45, 2) must act with prudence,

caution, and careful deliberation, Rios v. Northwestern Steel & Wire Co., 974 S.W.2d at

936, and 3) view the record from the advocate’s standpoint to determine whether there

were reasonable grounds to believe that the trial court’s judgment was reversible. Safeway

Managing Gen. Agency v. Cooper, 952 S.W.2d 861, 870 (Tex. App.–Amarillo 1997, no

writ). Moreover, pertinent indicia to consider include, among other things, whether 1)

appellant was attempting to relitigate an issue previously resolved, Njuku v. Middleton, 20

S.W.3d 176, 178 (Tex. App.–Dallas 2000, pet denied), 2) appellant provided us an

incomplete record, Tate v. E.I. du Pont de Nemours & Co., 954 S.W.2d 872, 875 (Tex.

App.–Houston [14th Dist.] 1997, no pet.), 3) appellant failed to respond to the request for

sanctions, American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d at 242, and

4) appellant filed an inadequate brief. Tate v. E.I. du Pont de Nemours & Co., 954 S.W.2d

at 875. Having perused the record with these indicia in mind, we note the following.

       First, all but the first issue proffered by Alex Ray had been resolved several years

earlier by our opinion in cause number 07-97-0494-CV. Again, in that case, we affirmed

the trial court’s award of the realty in question to Eddie, as representative of the estate of

Alex Stafford. Moreover, Alex Ray neither mentioned that decision in his brief nor

attempted to explain why it did not control the outcome of the forcible entry and detainer

proceeding. This cannot be because he was unaware of it since the opinion was received

into evidence below, according to the clerk’s record.


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      Second, an incomplete record was provided to us by Alex Ray, as we noted when

addressing issue one. Without it, we were unable to assess the legitimacy of that issue.

      Third, his brief was also inadequate, as we also addressed when responding to the

first issue. No authority was cited to support his contention that he was denied due

process.   And, while he did mention our March 14, 1995 opinion, he neglected to

acknowledge that our subsequent opinion in that same case vitiated any notion that the

estate of Alex Stafford did not own the property.

      Fourth, though the request for sanctions was included in Eddie’s appellate brief,

Alex Ray did not respond to it. We have nothing from him explaining why he believed he

had a reasonable chance of reversing the trial court’s judgment.

      Given the foregoing circumstances, we conclude that the appeal was frivolous.

Thus, we assess $500 as reasonable damages recoverable by Eddie for having to respond

to the baseless matter.

      Accordingly, we affirm the judgment of the trial court. We further order that Alex

Ray Stafford immediately pay Eddie Stafford, as the independent administrator of the

estate of Alex Stafford, the sum of $500.


                                                Brian Quinn
                                                  Justice




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