Zahoor Siddiqui v. Masoon Siddiqui and Queta Vera ( 2009 )

Affirmed and Memorandum Opinion filed March 3, 2009

Affirmed and Memorandum Opinion filed March 3, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00235-CV

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ZAHOOR SIDDIQUI, Appellant

V.

MASOON SIDDIQUI AND QUETA VERA, Appellees

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2004-55959

M E M O R A N D U M   O P I N I O N

Appellant, Zahoor Siddiqui, a pro se litigant, appeals from a final decree of divorce dissolving his marriage to appellee Masoon Siddiqui. In the decree, the trial court awarded past due legal fees to appellant=s former attorney, appellee Queta Vera, who had intervened in the divorce action.  On appeal, appellant challenges the awards made to both appellees.  We affirm.

Background

Masoon filed a petition seeking dissolution of her marriage to appellant.  Appellant filed his own pleadings asserting, among other things, claims for intentional infliction of emotional distress, defamation, and assault.  After the trial court entered temporary orders in the case, appellant filed several motions for enforcement alleging violations of the temporary orders by Masoon.  The final motion for enforcement was heard at the same time as the final trial.  During the course of the proceedings, appellant was represented by three attorneys but ultimately represented himself at trial and represents himself on appeal.  One of his former attorneys, Queta Vera, filed a petition in intervention seeking past due attorney=s fees and expenses.  In response, appellant filed pleadings against Vera for professional negligence.  At the close of trial, the trial court granted a directed verdict against appellant=s professional negligence claims.  The court then granted the divorce, denied the motion to enforce based on insufficient evidence of violations of the temporary orders, found no evidence of intentional infliction of emotional distress or defamation, and found insufficient evidence of assault.  The trial court further found that appellant was intentionally underemployed and assessed child support accordingly.  In its final decree, the court named both parents as joint managing conservators of the one remaining minor child and gave primary custody to Masoon and a standard possession order to appellant.  The trial court further ordered appellant to pay $4,666.39 to Vera as past due fees and expenses, and $10,350 to Masoon=s attorney for her fees.  The trial court additionally divided the marital assets and liabilities between the parties.

In his first two issues on appeal, appellant complains that (1) he was not timely served with the final decree prior to entry, and (2) Masoon submitted various documents to the court  just one day before trial and never served them on appellant.  In issues three through nine, appellant contends that the trial court erred in (1) denying his motion for enforcement; (2) refusing to award damages for assault, intentional infliction of emotional distress, and defamation; (3) awarding Vera $4,666.39; (4) dividing the marital estate; (5) ordering him to pay child support on the basis of a job he had not had for four years; (6) ordering him to pay $10,350 for Masoon=s attorney=s fees; and (7) refusing to find that appellee Vera negligently represented him.

Discussion

While we have compassion for the plight of the pro se litigant attempting to follow the rules of legal procedure and substantive laws, and therefore construe pro se pleadings and briefs liberally, we must still hold appellant to the same standard as a licensed attorney, requiring that he follow those same rules and laws.  Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184‑85 (Tex. 1978); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 693 (Tex. App.CDallas 2008, no pet.).  To do otherwise would give a pro se litigant an unfair advantage over a litigant represented by counsel.  Mansfield State Bank, 573 S.W.2d at 185; Cooper, 254 S.W.3d at 693.  Before a complaint can be raised on appeal, it first must be made in the trial court in the form of a timely and sufficiently specific  objection, request, or motion.  Tex. R. App. P. 33.1(a).  If the appellant failed to make the complaint in the trial court, it is not preserved for appellate review.  Cayan v. Cayan, 38 S.W.3d 161, 164 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  Among other requirements, an appellate brief must contain appropriate argument for the relief sought.  See Tex. R. App. P. 38.1(h).  The brief must also contain appropriate citations to the record and to relevant authority.  Id.  Failure to make appropriate argument or provide relevant citations will result in the overruling of the issue raised.  See, e.g., Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).

In his first issue, appellant contends that he was not served with the final decree, and thus was not able to review it, prior to entry.  Under this issue, appellant complains not only that he was not timely served but also that the decree is incorrect on several points, including that:  (1) the case was heard on a particular date, (2) the making of a record was waived by the parties, and (3) the parties entered into a written agreement.  In regards to the date the court heard the case, the decree makes apparent reference to the date of entry, not the date of trial, as appellant suggests.  Regarding the other points raised by appellant, although he raised the issue of inability to review the decree in his motion for new trial, and he makes numerous factual allegations in his brief, he has not provided any proof in support of his accusations.  The pleadings filed in the case, to which appellant cites, are not evidence.  Grass v. Golden, 153 S.W.3d 659, 660 (Tex. App.CTyler 2004, orig. proceeding) (citing Laidlaw Waste Sys.  (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)). The factual statements made in appellant=s briefs are not evidence.  See Calp v. Tau Kappa Epsilon Fraternity, 75 S.W.3d 641, 647 (Tex. App.CAmarillo 2002, pet. denied) (disregarding factual statements not supported by record references).  Because appellant has not supported his factual allegations with evidence or citation to evidence, we overrule his first issue.

In his second issue, appellant complains that appellee Masoon submitted various pleadings, exhibits, and orders to the court just one day before trial and never served them on appellant.  Appellant, however, does not cite to any place in the record where he made an objection, request, or motion on this basis, and our review of the record has discovered no such objection, request, or motion.  Consequently, this issue is not preserved for review.  See Tex. R. App. P. 33.1(a).  We overrule appellant=s second issue.

In appellant=s third issue, he contends that the trial court erred in denying his motion for enforcement.  The court denied the motion based on a finding of insufficient evidence of violations of the court=s temporary orders as alleged in the motion.  See generally City of Keller v. Wilson, 168 S.W.3d 802, 810-27 (Tex. 2005) (discussing standards governing sufficiency of the evidence).  In his briefing, appellant claims that Masoon violated the trial court=s temporary orders by failing to timely attend a program for divorcing parents and timely file verification of such attendance.  Appellant further complains that Masoon committed perjury by telling the court that she had properly complied with these portions of the temporary orders and that since she lied in regards to that issue it means she also lied on other statements, such as when she denied not surrendering the children to appellant on his assigned visitation days. Appellant additionally asserts that Masoon talked to the children about the case, controlled their daughter against him, and failed to timely register the children for counseling, all in violation of the court=s temporary orders.  The burden of proof on the motion for enforcement was on appellant.  See In re M.M.S., 256 S.W.3d 470, 477-78 (Tex. App.CDallas 2008, no pet.).  In her testimony, Masoon generally denied the allegations made by appellant.  In his testimony, appellant complained generally that Masoon did not let him see the kids and had turned the kids against him.  He did not offer any specifics.  As factfinder, the trial court was free to accept Masoon=s generalized testimony and disregard appellant=s.  See, e.g., Graybar Elec. Co., v. LEM & Assocs., L.L.C., 252 S.W.3d 536, 544 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  The items appellant cites to in the clerk=s record, such as Masoon=s certificate of completion of the parenting program, do not constitute evidence because they were not admitted as exhibits at trial or judicially noticed by the court.  See In re J.R.S., 232 S.W.3d 278, 280-81, 281 n.4 (Tex. App.CFort Worth 2007, no pet.).  Based on the evidence actually in the trial record, we cannot say that the trial court erred in denying appellant=s motion for enforcement.^[1] Accordingly, we overrule his third issue.

In the fourth issue, appellant contends that the trial court erred in refusing to award him damages on his claims for assault, intentional infliction of emotional distress, and defamation.  The trial court specifically found that appellant presented no evidence of intentional infliction of emotional distress or defamation and insufficient evidence of assault.  In support of this issue, the only relevant record citations appellant provides are to (1) Masoon=s testimony that they had a fight, (2) a neighbor=s testimony that he once saw appellant with scratch marks on his face, and (3) appellant=s own testimony wherein he accused Masoon of trying to poke his eye out.  The record further reveals that Masoon also testified that appellant was the aggressor and the abuser in the relationship, and that the neighbor did not testify as to how appellant received the scratches he observed.  As factfinder, the court was free to believe Masoon=s testimony and disbelieve appellant=s testimony.  See, e.g., Graybar Elec. Co., 252 S.W.3d 536 at 544.  Although the testimony appellant cites may have been relevant to his assault claim, it does not establish that the trial court erred in refusing to award damages on that claim.  See generally Morgan v. City of Alvin, 175 S.W.3d 408, 418 (Tex. App.CHouston [1st Dist.] 2004, no pet.) (AA person commits an assault by (1) intentionally, knowingly, or recklessly causing bodily injury to another;  (2) intentionally or knowingly threatening another with imminent bodily injury; or (3) intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.@).  Furthermore, in his brief, appellant fails to provide any relevant citations to authority.  See Tex. R. App. P. 38.1(h). Accordingly, this issue is overruled.

In issue number five, appellant contends that the trial court erred in awarding his former attorney, Queta Vera, $4,666.39 for her outstanding fees and expenses.  During trial, Vera introduced her billing records into evidence and testified regarding (1) the contract between her and appellant, (2) a check from appellant that was returned for insufficient funds, and (3) the reasonableness and necessity of the fees charged.  In his testimony, appellant alleged, with limited explanation, that Vera overcharged him, produced unuseable discovery, and turned against him at mediation.  In his appellate brief, appellant provides a further litany of conclusory allegations against Vera (and Masoon) unsupported by citation to trial evidence.  Appellant cites primarily to Vera=s billing records, which generally support her claims to fees and expenses due, and to the clerk=s record.  Nothing in the clerk=s record constituted evidence at trial unless admitted as an exhibit at trial or judicially noticed by the court.  See In re J.R.S., 232 S.W.3d at 280-81, 281 n.4.  Appellant also does not assert any particular legal argument as a basis for overturning the award.  Because appellant fails to make proper legal arguments supported by proper citations to the record, we overrule his fifth issue.  See Sterling, 99 S.W.3d at 799.

In his sixth issue, appellant contends that the trial court erred in its division of the marital estate.  Appellant specifically asserts that (1) the assets and liabilities listed for him in one of Masoon=s exhibits were four years old at the time of trial; (2) since that time, Masoon has Aacquired new loans and sold stocks,@ while appellant Asold bonds and . . . acquire more debt;@ and (3) appellant began but was not allowed to complete repairs to the electrical system of the house.  A trial court has broad discretion in dividing the marital estate at divorce.  Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Zagorski v. Zagorski, 116 S.W.3d 309, 313 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). On appeal, we will presume the trial court properly exercised its discretion and reverse only where the trial court clearly abused its discretion.  Murff, 615 S.W.2d at 698; Zagorski, 116 S.W.3d at 313.  Apart from the statements listed above, appellant offers no explanation of how the trial court abused its discretion in dividing the marital property.  Appellant also does not cite any authority in support of his statements and the only record cites he provides do not support his position.  Consequently, we find this issue improperly briefed.  See Tex. R. App. P. 38.1(h); Sterling, 99 S.W.3d at 799.   Issue six is overruled.

In his seventh issue, appellant contends that the trial court erred in ordering him to pay child support on the basis of a job he had not held for four years.  Appellant additionally asserts that the court erred in ordering child support exceeding 20% of his disposable earnings for one child and 50% of his disposable earnings over all.  Generally, a trial court has broad discretion in setting child support payments, and absent a clear abuse of discretion, the court=s order will not be disturbed on appeal.  In re Davis, 30 S.W.3d 609, 616 (Tex. App.CTexarkana 2000, no pet.).  Here, at the conclusion of trial, the trial court stated that it found appellant was intentionally underemployed and thus based his child support obligation on a previous job.  See Tex. Fam. Code ' 154.066 (AIf the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.@); Schaban‑Maurer v. Maurer‑Schaban, 238 S.W.3d 815, 826 (Tex. App.CFort Worth 2007, no pet.) (discussing section 154.066).  Beyond asserting that child support should be based on current wages, appellant makes no argument explaining why the court erred in holding that he was intentionally underemployed.  In support of his argument that the court erred in awarding over 50% of his disposable income, appellant cites the wage withholding order, wherein it states: AThe maximum amount to be withheld shall not exceed fifty percent (50%) of the Obligor=s disposable earnings.@  As appellee Masoon points out in her brief, this statement prevents an employer from withholding more than 50% of appellant=s disposable earnings but does not prevent the court from ordering him to pay over 50% of his earnings.  Because appellant has failed to make an argument explaining why the trial court erred and has failed to cite relevant authority for the points raised, we overrule appellant=s seventh issue.  See Tex. R. App. P. 38.1(h); Sterling, 99 S.W.3d at 799.

In issue eight, appellant contends that the trial court erred in ordering him to pay $10,350 for Masoon=s attorney=s fees.  Appellant first suggests that Masoon should be responsible for her own attorney=s fees because she instituted the divorce proceedings.  Appellant, however, does not cite any authority in support of this strict proposition, and we are aware of none. Appellant next asserts, without citation to the record or authority, that Masoon did not plead for attorney=s fees.  Masoon=s pleadings, however, consistently contained a request that attorney=s fees be awarded against appellant.  Appellant additionally states that he was charged with attorney=s fees because he was allegedly responsible for eight delays in the trial setting.  Appellant then goes through eleven continuances or resettings and attempts to explain why he did not cause them.  Although Masoon=s counsel testified regarding the reasonableness and necessity of her fees and various delays in the proceedings, she stopped short of blaming appellant for those delays.  Furthermore, the trial court said nothing in its findings or in the decree about the award of attorney=s fees being based on delays caused by appellant.  Thus, appellant=s arguments that he did not cause such delays do not demonstrate, without more, that the trial court erred in awarding attorney=s fees.  Appellant offers no further argument as to how the trial court erred in ordering him to pay Masoon=s attorney=s fees. Consequently, we overrule issue eight.

In issue nine, appellant contends that the trial court erred in refusing to find that Vera negligently represented him.  To be successful on a professional negligence, or malpractice, cause of action, a claimant must demonstrate: (1) the professional owed a duty to the claimant, (2) the professional breached that duty, (3) such breach proximately caused injury to the claimant, and (4) compensable damages occurred.  Grimes v. Reynolds, 252 S.W.3d 554, 558-59 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  At the close of appellant=s case-in-chief, Vera=s attorney moved for a directed verdict on appellant=s negligence claims on the ground that appellant had failed to present any evidence regarding duty, breach, or causation.  The trial court granted the motion.  In his briefing on this issue, appellant does not cite to any evidence in the record establishing any of the elements of professional negligence.  Because appellant has not provided any relevant record citations, we overrule appellant=s ninth issue.  See Tex. R. App. P. 38.1(h).

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]  Appellant also complains under this issue about various delays he says were occasioned by attorneys involved in the case. Appellant, however, does not explain how these delays support his contention that the court erred in denying the motion for enforcement, and such a link is not obvious.