Dion's of Texas, Inc. v. Shamrock Economic Development Corporation, and the City of Shamrock, Texas ( 2005 )

NO. 07-04-0050-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 25, 2005 ______________________________

DION'S OF TEXAS, INC.,

Appellant

v.

SHAMROCK ECONOMIC DEVELOPMENT CORPORATION

and the CITY OF SHAMROCK , TEXAS,

Appellees

_________________________________

FROM THE 31^ST DISTRICT COURT OF WHEELER COUNTY;

NO. 11,292; HON. STEVEN R. EMMERT, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

Dion's of Texas, Inc. (Dion's) appeals from a final summary judgment denying it recovery against the Shamrock Economic Development Corporation (the Corporation) and the City of Shamrock (the City) but granting the Corporation recovery against it upon a promissory note. The four issues before us involve whether the trial court granted the City relief outside the scope of its summary judgment motion and whether the City and Corporation established their right to summary judgment as a matter of law. We affirm the summary judgment.

Allegedly, the Corporation enticed Dion's to move its business from elsewhere in Texas to Shamrock. It also promised to effectuate the move and provide loans, according to Dion's. Because these promises were either breached or performed in a tortious manner, Dion's sued both the Corporation and the City. The Corporation counterclaimed to recover upon a promissory note executed by Dion's. Furthermore, both the City and Corporation filed answers to the petition and moved for summary judgment.

The trial court initially announced its ruling upon the summary judgment motions by letter. In that document, it mistakenly allowed the City to recover upon the note. But, a like mistake was not made in the final summary judgment that it executed. Instead, it denied Dion's recovery upon its claims and awarded the Corporation approximately $42,000 for Dion's failure to pay the note. And, though the Corporation and City asserted multiple grounds for relief in their respective motions, the trial court did not specify upon which ground or grounds it relied when granting the summary judgments.

Issues One and Two

Dion's first two issues involve the trial court's letter announcement of its proposed ruling. Because it stated, in the letter, that the City (as opposed to the Corporation) was to recover upon the promissory note and the City had not moved for relief upon the note, the trial court purportedly granted the City more relief than that to which it was entitled, so Dion's argues. We overrule the points.

While it may be that the trial court initially informed the litigants that the City would be granted damages arising from Dion's failure to pay the note, that was not the wording incorporated into the final judgment. Via the latter, the trial court expressly awarded the damages to the Corporation, not the City. More importantly, the letter itself cannot be considered an order. That this is true is evinced by the trial court's statement therein telling the attorneys for the Corporation and the City "to draft an appropriate order setting forth the Court's ruling as to their respective motion" and "provide [the order] to the Court for signature." Given that language, it is clear that the trial court did not intend for the letter to constitute an order adjudicating the summary judgment motions; if the contrary were true, then there would have been no need for it to tell the attorneys to prepare an order. See Perdue v. Patten, 142 S.W.3d 596, 603 (Tex. App.-Austin 2004, no pet.) (holding that though a letter purporting to grant a motion for new trial was filed with the clerk, it was not an operative order since the court also informed counsel to prepare an order for its signature).

In short, the language contained in the letter and the trial court's eventual entry of judgment awarding the damages to the Corporation cause us to hold that the damages were not granted to the City. Consequently, it cannot be said that the City received more relief than that which it sought via its summary judgment motion.

And, to the extent that Dion's also posits (in its second issue) that the judgment was improper since the Corporation purportedly failed to establish "each element of its claim," we note the conclusory nature of the assertion. Nowhere does Dion's mention the particular element or elements that the Corporation supposedly failed to prove. Nor does it discuss how the Corporation's acting in a "proprietary function" and "receiving benefits" somehow barred it from enforcing the promissory note. Similarly absent is any explanation, accompanied by supporting legal authority and citation to the record, of how "force majeure" or "illegal interference by" the Corporation relieved if from having to pay its debt.

While it may be that we must construe the rules of appellate procedure reasonably and liberally, see Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004), we are not obligated to contrive argument for any particular litigant. Jordan v. Jefferson County, No. 07-03-0444-CV, 2004 Lexis 11212 (Tex. App.-Amarillo, December 14, 2004, no pet.). So, given that Dion's failed to comply with its duty to support its contentions with substantive analysis, citation to legal authority, and citation to the record, Tex. R. App. P. 38.1(h) (imposing such a duty on an appellant), we conclude that this portion of issue two was waived. See Sunnyside Feedyard L.C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.-Amarillo 2003, no pet.) (holding that the failure to properly brief an issue results in its waiver); Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.-Amarillo 2002, no pet.) (holding that the failure to properly brief an issue results in its waiver).

Issue Three

Dion's presents a twofold attack upon the trial court's final judgment via its third issue. The first concerns the sufficiency of the affidavits tendered by the City to support its summary judgment grounds. According to Dion's, the documents "were incompetent to establish any evidence in support of any grounds in the Motion." While the record discloses that it did object to the affidavits below, the record does not indicate that the trial court ruled on those objections. Having failed to secure a ruling from the court, Dion's did not preserve its objections for appellate review. Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.-Houston [14^th Dist.] 2000, no pet.).

Nor does Dion's explain, in its appellate brief, why the affidavits were purportedly "incompetent." Nor are we directed to the particular matter within them that purportedly rendered them incompetent. And, assuming arguendo, that Dion's merely re-urged that argument contained in its response to the summary judgment motion, we note that the portion dealing with its objections to the affidavits was and is bereft of citation to authority and substantive legal analysis; so, it cannot serve to satisfy Dion's duty to provide us with sufficient argument and authority illustrating reversible error.

The second prong of Dion's attack involves the failure of the trial court to issue findings of fact and conclusions of law in support of its summary judgment. While it may be that the trial court did not execute any, Dion's was not entitled to them. See IKB Indus., Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997) (holding that a party is not entitled to findings of fact and conclusions of law regarding the entry of a summary judgment).

In sum, neither attack levied by Dion's via its third issue illustrates reversible error. So, we overrule the issue.

Issue Four

Through its last issue, Dion's argues that neither the Corporation nor the City established their affirmative defenses to its claims, negated its defenses to their claims, or negated the fact questions created by the affidavits it presented. We overrule the issue.

These contentions, like its others, are little more than conclusions, bereft of legal analysis. Furthermore, Dion's fails to direct us to the purported evidence in the affidavits mentioned that purportedly creates material fact issues. Nor does it explain how that unknown evidence created issues of fact or what those issues were. Simply put, the issue was again waived due to inadequate briefing.

Accordingly, we affirm the final summary judgment of the trial court.

Per Curiam

not suggest any plausible motive for doing so. Absent any indication that the subject knew Hook was a police officer, the magistrate could have reasonably concluded the likelihood that the subject's actions were the result of subterfuge were sufficiently low to support the conclusion that there was a "fair probability" cocaine was located in the house.

Appellant also contends that the absence of any showing that an occupant of the residence gave the subject the cocaine weighs against a finding of probable cause. We disagree. The question for the magistrate's decision was if there was a fair probability that cocaine could be found in the house rather than whether someone in the house gave it to the subject. His reliance on Haas v. State, 790 S.W.2d 609 (Tex. Crim. App. 1990), is misplaced. In Haas, the court held a showing that police found contraband on passengers of a car departing a storage facility did not justify a search of the facility. Id. at 612. However, in this case, the subject went to the house after offering to sell cocaine and delivered the substance after returning from the house. Thus, the facts before us are distinguishable from those before the Haas court.

Appellant identifies this court's unpublished opinion in State v. DeLeon, No. 07-95-0339-CR (Tex. App.--Amarillo Feb. 9, 1996, no pet.) (not designated for publication) as factually indistinguishable. Rule of Appellate Procedure 47 concerning publication and citation of opinions was revised effective January 1, 2003. Present Rule 47.7 now provides opinions not designated for publication under the former rule "have no precedential value but may be cited with the notation, '(not designated for publication).'" ⁽³⁾ Relying on the former rule which was in effect at the time its brief was filed, the State does not discuss DeLeon.

We have not yet addressed the effect of the change in Rule 47 and are not aware of opinions from other courts directly addressing that issue. Initially, we note that the former rule not only provided that unpublished opinions have no precedential value, but it also forbade the citation of such opinions as authority by either counsel or by a court. The difference then is the citation of unpublished opinions is no longer forbidden. With regard to the provision as to precedential value, the Seventh Edition of Black's Law Dictionary contains a definition of precedent as "[a] decided case that furnishes a basis for determining later cases involving similar facts or issues." Black's Law Dictionary 1195 (7^th ed. 1999). It goes on to define the terms "binding precedent" as precedent that a court must follow, and "persuasive precedent" as that which a court "may either follow or reject but that is entitled to respect and careful consideration." Id. It also explicates that precedent forms the core of the doctrine of stare decisis "under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation." Id. at 1414.

By stating that unpublished opinions may be cited but have no precedential value, we perceive the intent of the rule to be that a court has no obligation to follow such opinions. The effect of the rule is to afford parties more flexibility in pointing out such opinions and the reasoning employed in them rather then simply arguing, without reference, that same reasoning. However, the court to whom an unpublished opinion is cited has no obligation to follow the opinion or to specifically distinguish such opinion. They may be cited merely as an aid in developing reasoning that may be employed by the reviewing court be it similar or different. Even so, we do not view Rule 47.7, or the former rule, as justifying unreasoned inconsistency on the part of an appellate court.

Here, appellant presented the DeLeon opinion to the trial court and argued that it was dispositive of the motion to suppress. The trial court reviewed the opinion and commented:

. . . [A]lthough it's an unpublished opinion, it is interesting to see what the appellate court for this area would do. I do find that there are sufficient differences in that case than this case so that I'm not overly concerned [about] how they ruled in that particular case. . . . I think that . . . if they apply that same reasoning . . . to this case that this search will stand up.

The trial court correctly considered our opinion in DeLeon in the light by which such an opinion should be considered, namely, as a guide to the application of legal principles to the facts then before it. The trial court determined that the facts before it were factually distinguishable from the facts before the DeLeon court. We agree with that decision. To explicate why we agree, we must refer to those facts. In DeLeon, the affidavit used in obtaining a search warrant showed that the person who offered cocaine to the officer there drove to a house on 21^st Street in Lubbock, picked up a second person, drove to a convenience store where one of the people entered the store while the other drove to the defendant's house on 38^th Street, also in Lubbock, and went into the house. After leaving the house, the driver picked up the second person at the convenience store and then returned to the officer to complete the sale. We held the trial court did not abuse its discretion in finding the affidavit did not establish probable cause to believe cocaine could be found at the defendant's house. State v. DeLeon, No. 07-95-0339-CR, slip op. at 4. There, the trial court was justified in believing that the fact that two suspects went to two different locations between the offer to sell and the delivery was too attenuated to show probable cause. That is not the case here, and the trial court acted within its discretion in overruling the motion to suppress.

Appellant's points of error are overruled, and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2. Although referring to the person who dealt with Officer Hook and went to the house as the "subject" is somewhat awkward, we will use that reference in this opinion to be consistent with the references in the affidavit.

3. Former Rule 47.7 provided: "Opinions not designated for publication by the court of appeals have no precedential value and must not be cited as authority by counsel or by a court."