Carole Ehlert Bently Independent of the Estate of Leigh John Bently, Sr.-Deceased v. Duane Bentley Peck, Individually and as Trustee of the Stella Kennely Bently Family Trust Leigh John Bently D/B/A Second Amendment Shooting Center ( 2018 )

Affirmed and Memorandum Opinion filed October 9, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00561-CV
CAROLE EHLERT BENTLEY, INDEPENDENT EXECUTRIX OF THE
ESTATE OF LEIGH JOHN BENTLEY, SR.-DECEASED, Appellant
V.
DUANE BENTLEY PECK, INDIVIDUALLY AND AS TRUSTEE OF THE
STELLA KENNELLY BENTLEY FAMILY TRUST; LEIGH JOHN
BENTLEY D/B/A SECOND AMENDMENT SHOOTING CENTER,
Appellees
On Appeal from the 434th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 12-DCV-202291
MEMORANDUM OPINION
In a single issue, appellant Carole Ehlert Bentley, Independent Executrix of
the Estate of Leigh John Bentley, Sr.-Deceased, (Carole) contends that the trial court
“abused its discretion in granting the Final Judgment on July 10, 2017 thereby
violating Appellant’s due process rights.” She asks this court to deem the judgment
void. However, Carole fails to make a clear and concise argument with appropriate
citations to authorities, and she fails to demonstrate error in the record. Accordingly,
we affirm.
I. BACKGROUND
This case initially began as a family dispute about a purported lease between
members of the Bentley family: appellees Leigh John Bentley (Leigh Jr.) and Duane
Bentley Peck (Duane). Following the death of Leigh Jr.’s grandfather (Carl) and
father (Leigh Sr.), Carole intervened. Carole is Leigh Jr.’s mother and was married
to Leigh Sr. at the time of Leigh Sr.’s death. She was the independent executor and
sole beneficiary of Leigh Sr.’s estate. Duane and Carole inherited, or stood to inherit,
fifty percent undivided interests in the tract of land that included the leased premises.
Carole stated in the petition that the basis for her intervention was her status
as the executor of Leigh Sr.’s estate:
 “As the personal representative of [Leigh Sr.’s] estate Carole
Bentley therefore has a justiciable interest in the subject matter of
this suit and standing to intervene as a necessary party.”
 “Carole Bentley, as the Independent Executrix of his estate, must be
made a party to the action.”
Later, Carole filed a verified motion for continuance “in her capacity as Executrix
of the Estate of Leigh John Bentley, Sr., Deceased.”
Eventually, all parties to this appeal appeared before the trial court and agreed
to a settlement, which included termination of the lease, partition of the land between
Duane and Carole, disposition of livestock, and the building of a fence. The trial
court delayed signing a written judgment so the parties could obtain a survey of the
land.
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Carole, represented by a different lawyer, then filed a document titled “Estate
of Leigh John Bentley, Sr., Deceased’s Petition in Intervention,” in which Carole
purportedly filed the petition in her capacity as independent executor of the estate.
She alleged a claim against Duane for breach of fiduciary duties that Duane owed
because of Duane’s status as trustee of a trust and executor of Carl’s estate.
After a survey of the land was completed, the parties attended a hearing on
Duane’s motion to enter a judgment. Carole’s new lawyer explained that “the estate”
had standing and “the estate does not agree to the settlement agreement.” He argued
that Carole, individually, had her own legal counsel, but that he represented “the
Bentley estate.” He argued that the settlement agreement was made “prior to my
client being in this court.”
After additional briefing, the trial court signed an order denying Carole’s
second petition in intervention. The court found that Carole, “individually and as
Independent Executrix of the Estate of Leigh John Bentley Sr., Deceased, has
previously intervened and participated in the case and was present and participated
in a settlement agreement agreed to in open court.”
The trial court signed a final judgment incorporating the terms of the
settlement. Carole brings this appeal.
II. ANALYSIS
On appeal, Carole contends that the settlement agreement “was without
Appellant’s participation in violation of Appellant’s due process rights and should
be deemed void ab initio.” And she claims that the trial court “denied Appellant’s
legal right to participate in the underlying lawsuit thus violating Appellant’s due
process rights.”
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The record belies Carole’s contentions that she did not participate in the
lawsuit. Carole had intervened in the lawsuit and based her justiciable interest on her
status as the independent executor of Leigh Sr.’s estate. The record from the
settlement hearing evidences her participation:
[Duane’s Lawyer]: Excuse me. Now, Carol Bentley is here also.
THE COURT: Okay.
[Carole’s Lawyer]: I would like to put her on the record, too.
(Carol Bentley approaches)
[Duane’s Lawyer]: My client asks that we say in plain English that this
is going to end the lawsuit, this lawsuit, and it’s going to settle all the
claims in this lawsuit.
THE COURT: I’ll get to that right at the end. All right, ma’am. Will
you identify yourself for the record, please?
MS. BENTLEY: Carol Bentley.
THE COURT: All right. Miss Bentley, will you raise your right hand
for me.
(Miss Carol Bentley sworn)
THE COURT: Have you heard what has been said as the agreement to
end this lawsuit?
MS. BENTLEY: Yes.
THE COURT: Is that your agreement?
MS. BENTLEY: Yes.
THE COURT: Do you believe it to be fair under the circumstances?
MS. BENTLEY: Yes.
THE COURT: All right.
On appeal, this court struck Carole’s initial brief because it contained no
citations to the record or legal authorities. See Tex. R. App. P. 38.1(g), (i). She filed
an amended brief that includes some citations to the record and citations to legal
authorities concerning the standard of review for an abuse of discretion, but she
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includes no citations to support her legal or factual assertions concerning due process
or whether the trial court’s judgment is void.
Although we construe briefs liberally and require only substantial compliance
with briefing rules, see Tex. R. App. P. 38.9, if an appellant’s issues are unsupported
by a clear and concise legal argument with appropriate citations to authorities, the
appellant waives error. See, e.g., Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d
928, 931–32 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also Izen v.
Comm’n for Lawyer Discipline, 322 S.W.3d 308, 321–22 (Tex. App.—Houston [1st
Dist.] 2010, pet. denied) (“[A]ppellate issues are waived when the brief fails to
contain a clear argument for the contentions made.”). “An appellate court has no
duty, or even the right, to perform an independent review of the record and
applicable law to determine whether there was error.” Canton-Carter, 271 S.W.3d
at 930.
Carole, as the appellant, has the burden to show error. See Budd v. Gay, 846
S.W.2d 521, 524 (Tex. App.—Houston [14th Dist.] 1993, no writ) (citing
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)); see also Garcia v.
Sasson, 516 S.W.3d 585, 590 (Tex. App.—Houston [1st Dist.] 2017, no pet.). She
has the burden to demonstrate that the record supports her contentions. See Russell
v. City of Bryan, 919 S.W.2d 698, 706 (Tex. App.—Houston [14th Dist.] 1996, writ
denied). But, as noted above, Carole has not demonstrated in her amended brief that
she was prevented from participating in the settlement agreement that prompted the
trial court’s judgment. The record shows only that the trial court prevented Carole
from litigating—in this lawsuit between the appellees about a lease—Carole’s claim
for breach of fiduciary duty against one appellee regarding the appellee’s status as a
trustee of a trust and executor of an estate. Carole does not explain how the trial
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court’s denial of her second petition may have been erroneous, how she was denied
due process, or how the trial court’s judgment is void.
When an appellant’s brief is deficient, it is a “settled rule that an appellate
court has some discretion to choose between deeming a point waived and allowing
amendment or rebriefing.” Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284 (Tex. 1994). We have already allowed Carole to file an amended
brief. Due to inadequate briefing, she has waived her issue on appeal. See, e.g.,
Canton-Carter, 271 S.W.3d 931–32. And, our review of the record reveals no
obstacle to the trial court’s jurisdiction that might result in a void judgment.
The trial court’s judgment is affirmed.
/s/ Ken Wise
Justice
Panel consists of Justices Jamison, Wise, and Jewell.
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