Udo Birnbaum v. CSD Van Zandt, LLC

NO. 12-23-00282-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

UDO BIRNBAUM, § APPEAL FROM THE 294TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

CSD VAN ZANDT, LLC,
APPELLEE § VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION
Udo Birnbaum, proceeding pro se, appeals the trial court’s grant of summary judgment in
favor of CSD Van Zandt, LLC. He presents eight issues on appeal. We affirm.

BACKGROUND
In 1981, T.C. and Carolyn Ann Travis deeded Birnbaum 150 acres in Van Zandt County.
In 2002, Birnbaum sold the property to Gwendolyn Wright Thibodeaux. Gwendolyn died
intestate in 2006. After a Van Zandt County court determined her heirs and their respective
shares, Louis Thibodeaux, Patricia Moore Barclay, and James T. Moore, III owned the 150 acres.
Louis owned fifty percent interest; Barclay owned twenty-five percent interest; and Moore
owned twenty-five percent interest. When Louis died in 2019, his will conveyed his interest in
the property to Lisa Girot. Therefore, Girot owned a fifty percent interest in the property. On
June 24, 2022, CSD purchased the property from Girot, Barclay, and Moore via warranty deed
with vendor’s lien.
Prior to purchasing the property, CSD learned Birnbaum was living on a portion of the
property. Girot also informed CSD that Louis previously attempted to convey the property to
Birnbaum in March 2017, but Birnbaum refused. On June 30, 2022, CSD sent Birnbaum a letter
requesting he vacate the property. Birnbaum responded by filing a warranty deed in the county
records, which purportedly conveyed the property to him in March 2017.
Thereafter, CSD filed suit against Birnbaum asserting actions for declaratory judgment,
trespass to try title, and a suit to quiet title. Birnbaum filed an answer and asserted various
counterclaims. CSD filed a traditional motion for summary judgment on its claims, which the
trial court heard by submission and granted. The trial court then entered a final judgment
granting CSD’s claims. This appeal followed.

RIGHT TO JURY TRIAL
In his first, second, fourth, and eighth issues, Birnbaum asserts that he was denied his
right to a trial by jury. 1 The right to a jury trial in civil cases is not absolute. See, e.g., Green v.
W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968); Martin v. Commercial Metals Co., 138
S.W.3d 619, 626 (Tex. App.—Dallas 2004, no pet.). The summary judgment process provides a
method of terminating a case when only questions of law are involved and there are no genuine
issues of fact. See Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex. App.—Texarkana 2002,
pet. denied). The process will not deprive litigants of a jury trial where material questions of fact
exist. Id. However, if there is nothing to submit to a jury, the grant of summary judgment
cannot violate a party’s constitutional right to a jury trial. See id.; see also Martin, 138 S.W.3d
at 627. None of Birnbaum’s issues attack the merits of the summary judgment; therefore, we
cannot disturb the trial court’s determination that there is no genuine issue of material fact. See
Pat Baker Co v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (appellate court cannot reverse trial
court’s judgment absent properly assigned error). We overrule Birnbaum’s first, second, fourth,
and eighth issues.

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Birnbaum’s second issue is titled “A summary judgment cannot substitute for a real judgment,” but seems
to argue that only a Justice of the Peace can issue a writ of possession. However, he also argues that a jury trial is
required before a writ of possession can be issued. Because a writ of possession is not a final, appealable order, we
construe his issue as another jury trial argument. See LaFontaine v. Hendricks Prop. Mgmt., No. 04–11–00044–
CV, 2011 WL 1158399, at * 1 (Tex. App.–San Antonio Mar. 30, 2011, no pet.) (mem. op.) (holding that a writ of
possession is neither a final judgment nor an appealable interlocutory order).

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STATUTE OF LIMITATIONS
In his seventh issue, Birnbaum claims the statute of limitations for adverse possession
“precluded trespass to try title.” In support of his argument, Birnbaum includes a copy of his
answer in which he pleads statute of limitations as an affirmative defense. However, pleadings
are not summary judgment evidence, even if sworn or verified. Laidlaw Waste Sys. (Dallas),
Inc. v. City of Wilmer, 904 S.W.2d 656, 660-61 (Tex. 1995). A party cannot rely on its own
pleaded allegations as evidence of facts to oppose its opponent’s summary-judgment motion.
Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021).
And the record does not reflect that Birnbaum filed a response to CSD’s motion for summary
judgment. Although he filed a response to the notice setting the motion for submission, along
with his own no evidence motion for summary judgment, neither document references the statute
of limitations. See TEX. R. APP. P. 33.1 (as prerequisite to presenting complaint for appeal, record
must show that complaint was made to trial court by timely request, objection, or motion and
trial court ruled thereon). We overrule Birnbaum’s seventh issue.

REMAINING ISSUES
Texas Rule of Appellate Procedure 38.1(i) 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(i). The appellate court has no duty to brief issues for an
appellant. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). The failure to
provide appropriate record citations or a substantive analysis waives an appellate issue.
WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881
S.W.2d 279, 284-85 (Tex. 1994) (appellate court has discretion to deem issues waived due to
inadequate briefing). References to sweeping statements of general law are rarely appropriate.
Bolling v. Farmers Branch Ind. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no
pet.).
Even though we must construe briefing requirements reasonably and liberally, a party
asserting error on appeal still must put forth some specific argument and analysis showing that
the record and the law support its contentions. San Saba Energy, L.P. v. Crawford, 171 S.W.3d
323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.). An appellate court has no duty—nor

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any right—to perform an independent review of the record and applicable law to determine
whether there was error. Canton–Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931–32 (Tex.
App.—Houston [14th Dist.] 2008, no pet.); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—
El Paso 2007, no pet.). Were we to do so, we would be abandoning our role as neutral
adjudicators and become an advocate for that party. Valadez, 238 S.W.3d at 845.
Moreover, a pro se litigant is held to the same standards as licensed attorneys and must
comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d
181, 184–85 (Tex. 1978); Interest of A.E., 580 S.W.3d 211, 219 (Tex. App.—Tyler 2019, pet.
denied). Otherwise, pro se litigants would benefit from an unfair advantage over parties
represented by counsel. Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV, 2017 WL
2665180, at *2 n.3 (Tex. App.—Tyler June 21, 2017, no pet.) (mem. op.).
Birnbaum’s brief is devoid of references to the record. And his brief simply includes
broad statements of law without explanation as to how they apply to his facts and arguments.
See Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no pet.) (“merely
uttering brief conclusory statements” is not a discussion of the facts and authorities relied upon
contemplated by Rule 38). In his third issue, Birnbaum claims genuine issues of material fact
exist but offers no record citations or arguments to support his position. His fifth issue claims
CSD’s “whole cause is nothing but a sales pitch fabrication, record by Plaintiff, then spun into
pleadings, motions, affidavits, co-mingling, etc.” He claims that CSD’s pleadings and evidence
are “hearsay upon hearsay” without identifying the specific documents, statements, or claims he
is attacking. His sixth issue purports to attack CSD’s standing to bring a trespass to try title suit
but contains no legal or record citations to support his position. We liberally construed
Birnbaum’s brief in order to give effect to his arguments. See TEX. R. APP. P. 38.9. But it is not
our duty to review the record, research the law, and fashion a legal argument for an appellant
when he fails to do so. Zhang v. Capital Plastic & Bags, Inc., 587 S.W.3d 82, 90 (Tex. App.—
Houston [14th Dist.] 2019, pet. denied). Accordingly, we hold Birnbaum waived any alleged
error with respect to issues three, five, and six. We overrule his third, fifth, and sixth issues.

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DISPOSITION
Having overruled all of Birnbaum’s issues, we affirm the trial court’s judgment.

GREG NEELEY
Justice

Opinion delivered May 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 31, 2024

NO. 12-23-00282-CV

UDO BIRNBAUM,
Appellant
V.
CSD VAN ZANDT, LLC,
Appellee

Appeal from the 294th District Court
of Van Zandt County, Texas (Tr.Ct.No. 22-00105)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, Udo Birnbaum, for which execution may issue, and that this decision be
certified to the court below for observance.

Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.