JUDGMENT FOR HOME OWNERS' ASSOCIATION NOT VOID Bankruptcy Discharge Defense Was Not Presented to the Trial Court and WasThus Waived

In this pro-se appeal from a summary judgment in favor of a home owners' association, the Fourteenth Court of Appeals, in a panel opinion penned by a former justice sitting as a visiting judge, holds that the collection of delinquent assessments was not barred by homeowner's bankruptcy discharge. The argument was not properly presented to the trial court. As an affirmative defense, the bankruptcy discharge defense must be properly pleaded, and must be asserted in a proper response when the Plaintiff moves for summary judgment on its claim. The defendant/appellant in this case did neither. It was too late to raise the issue in a motion for new trial.

Relevant part of the opinion by Senior Justice Price follows:

Discharge in Bankruptcy

In the final issue presented on appeal, [the homeowner/appellant] claims the trial court's judgment is void because the debt he owed to Westgate was discharged in bankruptcy. However, discharge in bankruptcy is an affirmative defense that must be pleaded. See Tex. R. Civ. P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex. App.- Dallas 2007, no pet.).

An affirmative defense that is not pleaded or proved, and on which findings are not obtained,
is waived and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).

Here, discharge in bankruptcy was not raised or even hinted-at by the pleadings. Instead, the affirmative defense was not presented to the trial court until Monk's motion for new trial, which did not preserve the issue for our review. See id. Thus, we overrule [the homeowner's] final issue.

Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Price) (motion for new trial and preservation of error for appellate review, discharge in bankruptcy as affirmative defense required to be pleaded)
AFFIRMED: Opinion by Senior Justice Frank C. Price
Before Price, Justices Brock Yates and Guzman
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble

Privilege claim lost by filing document at issue unsealed

On the second try for appellate court mandamus, the Fourteenth Court of Appeals rules that litigant who invoked privilege waived the claim of privilege by filing unsealed copies of the consulting expert's report she wanted protected. The Court concludes that voluntary and intentional disclosure of the document at issue defeats the privilege, and denies the petition for mandamus relief.

In re Heide Ortuno
(Tex.App.- Houston [14th Dist.] July 24, 2008)(orig. proc.)(mem. op.)
(discovery mandamus re: consulting expert privilege claim denied)

FROM THE OPINION:

A party waives a privilege if it voluntarily discloses the privileged information to an open court. See Stroud Oil Props., Inc. v. Henderson, No. 02-03-00003-CV, 2003 WL 21404820, at *3 (Tex. App.- Fort Worth June 19, 2003, pet. denied) (mem. op.). Likewise, the voluntary submission of unsealed materials in an appellate record waives any asserted privileges as to those materials:

Some of the evidence . . . was included in the appellate record in this cause. These documents were made part of the record on December 28, 2004. They were included in the appellate record after [Appellee] asserted its claims of privilege. Nothing in this court's file evidences any attempt by [Appellee] to recall these documents as privileged. Therefore, for the present litigation, we conclude that [Appellee's] prior assertion of privilege as to these documents has been waived. Yorkshire Ins. Co., ___ S.W.3d ___, 2007 WL 1771614, at *14 (citation omitted). Because Yorkshire presented as a regular appeal, the responsibility for preparing, certifying, and timely filing the record therein lay with the trial court personnel. See Tex. R. App. P. 35.3. By contrast, in a mandamus proceeding, the relator - here, Ortuno - prepares and files the mandamus record. See Tex. R. App. P. 52.7(a). This obligation does not relieve her of the duty to properly preserve an asserted privilege, as through, for example, the submission of a sealed mandamus record. See, e.g., In re Jeffcoat, No. 01-04-00430-CV, 2005 WL 428213, at *1 (Tex. App.- Houston [1st Dist.] Feb. 24, 2005, orig. proceeding [mand. denied]) (mem. op.).

Ortuno has voluntarily filed unsealed copies of the Caudle report on at least two occasions. We conclude that she has not carried her burden of demonstrating that she did not waive the consulting-expert privilege. See Giffin, 688 S.W.2d at 114; Stroud Oil Props., Inc., 2003 WL 21404820, at *3; Yorkshire Ins. Co., ___ S.W.3d ___, 2007 WL 1771614, at *14.

We therefore do not find that the trial court abused its discretion in denying Ortuno's motion for protection. Because of our resolution here, we need not address the trial court's other stated grounds for denying Ortuno's requested relief.

Accordingly, we deny the petition for writ of mandamus.

In re Heide Ortuno (Tex.App.- Houston [14th Dist.] July 24, 2008)(Brown) (discovery mandamus denied, order of protection, privilege claim waived by voluntary disclosure)
Opinion by Justice Jeff Brown
Panel: Before Justices Brock Yates, Guzman and Brown
Appeals Court case number: 14-08-00457-CV
Full case style: In Re: Heide Ortuno, Individually and as next friend of J.O. a minor child
Appeal from 215th District Court of Harris County
Trial Court Judge: Levi James Benton

Another Pro-Se Appellant Gets Routed

He who represents himself has a _______ for counsel, especially in the absence of familiarity with the appeallate proces.

Reed v. REO Properties Corp. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Alcala) (waiver of appeal, inadequate briefing)
Opinion by Justice Alcala Before Justices Nuchia, Alcala and Hanks
01-06-00637-CV Willis C. Reed v. REO Properties Corp.Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Representatives of parties: Appellant pro se Appellee: Attorney Rex L. Kesler
Disposition: Affirmed

Waiver of Appeal

Reed fails to present any clear grounds for reversal on appeal and fails to cite to the record or to any authority in his brief.

Texas Rule of Appellate Procedure 38.1(h) requires that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(h). “Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Id. “Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority or cites only to a single non-controlling case.” Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Reed’s brief does not present any grounds for reversal of the trial court’s judgment nor does it contain a single citation to a legal authority or the record. We therefore hold that Reed has waived his right of appeal due to inadequate briefing. Tex. R. App. P. 38.1(h); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Conclusion

We affirm the judgment of the trial court.

How to (not) lose right to jury trial

Right to trial by jury in family court easily waived by not objecting to bench trial, and making sure the objection makes it into the record.

Appellant Waived Consideration Of His Issue Contending The Trial Court Erred When It Allegedly Denied Appellant's Request For A Jury Trial

In his second issue, appellant argues the trial court abused its discretion when it denied his request for a jury trial. Appellee asserts appellant has waived this issue on appeal because he failed to preserve this issue for appellate review by objecting on the record to the trial court conducting a bench trial. Once again, we agree with appellee.

When a party has perfected his right to a jury trial in accordance with Rule 216 of the Texas Rules of Civil Procedure but the trial court proceeds to trial without a jury, the party must, to preserve error, object on the record or affirmatively indicate on the record it intends to stand on its perfected right to a jury trial. In re K.M.H., 181 S.W.3d 1, 8 (Tex. App.- Houston [14th Dist.] 2005, no pet.) (citing Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat'l Assurance Co., 875 S.W.2d 385, 387-88 (Tex. App.- Dallas 1993, no writ). The burden is on an appellant to bring forth a record sufficient to show reversible error. Sunwest, 875 S.W.2d at 388. Because there is no reporter's record in this appeal, even assuming without deciding appellant perfected his right to a jury trial, appellant cannot demonstrate he preserved this issue for appellate review by objecting on the record or otherwise affirmatively indicating on the record his intention to stand on his right to a jury trial. Accordingly, appellant has waived this issue on appeal. Tex. R. App. P. 33.1; Sunwest, 875 S.W.2d at 388. We overrule appellant's second issue.

Case involved pro-se litigant, but lesson equally important for lawyers to heed if appeal is a possibility.

Patterson v. Patterson (Tex.App. - Houston [14th Dist.] May 13, 2008) (Anderson) (divorce, waiver of jury trial, local rules, attorney's fees)
AFFIRMED: Opinion by Justice John Anderson
14-07-00487-CV Richard Steven Patterson v. Gwendolyn Elizabeth Patterson
Appeal from 247th District Court of Harris County
Trial Court Judge: Judge Bonnie Crane Hellums

Jury waiver not a rare occurrence: Here is another case of second thoughts about wisdom of bench trial that did not sway the judges on appeal

Lofton v. Dyer (Tex.App.- Houston [1st Dist.] May 15, 2008)(Hanks) (real estate law, trespass to try title, adverse possession, right to try case to jury waived)

Right to Trial by Jury

In issue one, the Loftons argue that the trial court erred in denying them their right to a trial by jury.

A litigant waives the right to trial by jury if he participates in a bench trial without objection. See, e.g., In re D.R., 177 S.W.3d 574, 580 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (holding that litigants waived their objection to bench trial by failing to object or otherwise indicate they possessed “perfected” right to jury trial until charge conference); In re A.M., 936 S.W.2d 59, 61 (Tex. App.—San Antonio 1996, no writ) (observing that perfected right to jury trial in civil case may be waived by party’s failure to act when trial court proceeds with bench trial); Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no writ) (holding that, “when a party has perfected its right to a jury trial in accordance with rule 216 but the trial court instead proceeds to trial without a jury, the party must, in order to preserve any error by the trial court in doing so, either object on the record to the trial court’s action or indicate affirmatively in the record it intends to stand on its perfected right to a jury trial”).

The Loftons contend that they made a demand and paid a jury fee on October 24, 2001, and, when the case was called to bench trial, they requested that the trial proceed before a jury.

On August 2, 2005, all parties, through their respective attorneys, including the Loftons, waived their right to a jury trial and elected to try the case to the trial court without a jury. In February 2006, the trial court sent out a Notice of Bench Trial to be held on April 3, 2006. On March 6, 2006, the trial court sent out a Notice of Docket Call, which also reflected that the case was set for a bench trial. The Loftons never objected.

Accordingly, the trial court did not err in denying the Loftons’ belated request for a jury trial.

We overrule issue one.

Award of 100% of the Home Equity to Wife Affirmed Based on Stipulation

Court of Appeals Holds that Husband Did Not Effectively Revoke Stipulation Regarding Disposition of the Parties' Home.

In his appeal from the property division in a divorce case in which conservatorship was tried to a jury, husband unsuccessfully challenged his attorney's authority to enter the stipulation concerning the assignment of 100% of the equity in the parties' home to the wife. In an opinion by Justice Guzman, a former family court judge, the appellate panel holds that husband had waived the argument on appeal by failing to first present it in the trial court.

Zavala v. Zavala (Tex.App.- Houston [14th Dist.] May 31, 2007)(Guzman)(divorce, property division)

Disposition: Affirmed
Opinion by Justice Eva Guzman
Panel composition: Justices Kem Frost, Charles Seymore and Eva M. Guzman
Appellate cause no: 14-06-00081-CV
Style: Paul Zavala v. Evelyn Zavala
Trial Court: 246th District Court of Harris County (no name for judge shown on e-docket)

Legal lingo: divorce, unequal property division, 100% of the marital home to one spouse, settlement agreement between divorcing spouses, stipulation by counsel, revocation