Leon Thompson v. Earlene O'Neal and Doris Broughton

Reversed and Modified in Part, Affirmed as Modified; and Opinion Filed
June 27, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00046-CV

LEON THOMPSON, Appellant
V.
EARLENE O’NEAL AND DORIS BROUGHTON, Appellees

On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-08105

MEMORANDUM OPINION
Before Justices Smith, Miskel, and Breedlove
Opinion by Justice Smith
Appellant Leon Thompson, representing himself pro se, appeals the trial

court’s judgment ordering the sale of real property that he and appellees Earlene

O’Neal and Doris Broughton owned. Raising seven issues, Thompson asks this

Court to reverse the trial court’s judgment and award damages and equitable relief

in his favor. We reverse an award of attorney’s fees to appellees, modify the

judgment to remove the award of attorney’s fees, and affirm the judgment as

modified.
Background

In June 2019, appellees filed a petition for partition and sale of real property

located at 223 Cliff Street in Dallas (the Property). They alleged that they owned a

ninety-eight percent interest in the Property and Thompson owned a two percent

interest. O’Neal also owned an adjacent tract, 227 Cliff Street, and appellees sought

to sell the Property to a third party that wanted to purchase both tracts. Alleging that

the Property was not subject to partition in kind, appellees requested that the trial

court order the sale and that the net proceeds be divided between them and

Thompson in accordance with their proportionate interests. Appellees also sought

to recover from Thompson a proportional share of expenditures made for the care,

maintenance, upkeep, and preservation of the Property, attorney’s fees, and interest.

Thompson filed an answer, generally denying appellees’ allegations.

Appellees subsequently filed a summary judgment motion, seeking partition

and an ordered sale of the property. The exhibits supporting the motion including

an affidavit by O’Neal, stating among other things that she obtained ninety-nine

percent of the Property through inheritance and Thompson owned one percent of the

Property. The Property was sitting vacant, deteriorating rapidly in value, and subject

to several outstanding liens. It was worth $84,000, and O’Neal had received an offer

to purchase it in that amount. O’Neal, who was 102 years old and lived in a nursing

home, needed the Property sold as soon as possible due to her age and health. She

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further averred that Thompson had hindered the sale of the Property to ready,

willing, and able buyers in the past.

Thompson responded to appellees’ summary judgment motion and also filed

a counterclaim for equitable reimbursement of amounts that he alleged he had paid

for property taxes, interest, and fees.

On December 19, 2019, the trial court signed an interlocutory order granting

the summary judgment motion, finding that the Property was not subject to partition

and ordering that it be “sold to the highest bidder with proof of funds.”

On July 28, 2022, the trial court signed a final judgment, which recited that

the parties appeared at a July 12 hearing and announced ready for trial. After

considering the pleadings, the evidence, and the arguments of counsel, the trial court

found that appellees were entitled to judgment against Thompson, appellees held an

ownership interest in the Property in a percentage to be determined by the title

company, appellees incurred attorney’s fees in the amount of $4,000 to attempt to

clear title to the Property due to Thompson’s failure to convey his interest in the

Property, and appellees incurred significant additional costs and attorney’s fees

during the prosecution of this matter. The trial court ordered that the Property be

sold to the highest bidder with proof of funds, citing its earlier summary judgment

order, and that, at closing, appellees recover a credit of $4,000 for attorney’s fees

incurred in clearing title to the Property from Thompson.

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Thompson filed a notice of appeal. He also filed additional motions in the

trial court, including a January 10, 2023, motion for ex parte restraining order asking

the trial court to overturn the judgment and enjoin appellees from selling the

property. This appeal followed.

Record on Appeal

Generally, an appellate record consists of both the clerk’s and reporter’s

records. See TEX. R. APP. P. 34.1 (appellate record consists of clerk’s record and

reporter’s record if the latter is necessary to the appeal). No reporter’s record has

been filed in this appeal.

On January 17, 2023, the court reporter filed a letter stating that Thompson

had not submitted a request for preparation and/or a written designation for the

reporter’s record to be filed and had not paid for a reporter’s record. The same day,

we sent Thompson a letter advising that the reporter’s record had not been filed and

giving him ten days to provide notice that he requested preparation of the record,

along with written verification that he paid or made arrangements to pay the

reporter’s fee or written documentation of inability to pay costs. We cautioned that

if we did not receive the requested documentation within the time specified, we “may

order the appeal submitted without the reporter’s record.” See TEX. R. APP. P.

37.3(c). Receiving no response, we entered an order submitting the appeal without

a reporter’s record on March 1, 2023.

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When, as in this case, there is no reporter’s record and findings of fact and

conclusions of law are neither requested nor filed, the judgment of the trial court

implies all necessary findings of fact to sustain the judgment. Lyons v. Polymathic

Properties, Inc., No. 05-15-00408-CV, 2016 WL 3564210, at *2 (Tex. App.—Dallas

June 29, 2016, no pet.) (mem. op.); Waltenburg v. Waltenburg, 270 S.W.3d 308, 312

(Tex. App.—Dallas 2008, no pet.). We presume the missing reporter’s record

supports the trial court’s decisions. Lyons, 2016 WL 3564210, at *2 (citing Bennett

v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (per curiam) (stating that the “court of

appeals was correct in holding that, absent a complete record on appeal, it must

presume the omitted items supported the trial court’s judgment”)). Similarly, we

cannot accept statements in a brief that are unsupported by the record as fact. In re

A.F.S., No. 05-16-01123-CV, 2018 WL 3434509, at *2 (Tex. App.—Dallas July 17,

2018, no pet.) (mem. op.) (citing Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845

(Tex. App.—San Antonio 1989, writ denied)).

We recognize that Thompson is pro se; however, a pro se litigant is held to

the same standards as a licensed attorney and, therefore, must comply with the

applicable rules of appellate procedure. See Washington v. Bank of N.Y., 362 S.W.3d

853, 854 (Tex. App.—Dallas 2012, no pet.). To do otherwise would give a pro se

litigant an unfair advantage over a litigant who is represented by counsel. Id.

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Thompson’s first, third, fourth, sixth, and seventh issues involve portions of

the proceedings that were not included in the record on appeal. As explained below,

we presume that the omitted portions supported the trial court’s judgment.

In his first issue, Thompson complains of the trial court’s failure to appoint a

receiver for the sale of the Property. The docket sheet reflects that Thompson filed

an application for appointment of receiver in January 2020 and a hearing on the

application was set in February 2020. However, the application is not in the clerk’s

record and the record contains no ruling on the application.1

To preserve a complaint for appellate review, a party must make the complaint

to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1).

Preservation also requires: (1) an express ruling by the trial court, (2) an implicit

ruling by the trial court, or (3) a refusal to rule by the trial court, coupled with an

objection to that refusal by the complaining party. Id. 33.1(a)(2). To the extent that

we might construe the trial court’s final judgment as an implicit denial of

Thompson’s application for appointment of a receiver, the application is not before

us, there is no reporter’s record of a hearing on the application, and findings of fact

and conclusions of law were neither requested nor filed. Accordingly, we must

conclude that the trial court’s judgment implies all necessary findings to sustain the

1
Thompson included what appears to be a copy of the application as an exhibit to his appellate brief,
but it is well-settled that we may not consider documents attached to an appellate brief that are not part of
the record. Bailey v. Lakes of Preston Vineyards Homeowners Ass’n, No. 05-13-00146-CV, 2015 WL
224941, at *1 (Tex. App.—Dallas Jan. 15, 2015, no pet.) (mem. op.).

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judgment. See Lyons, 2016 WL 3564210, at *2. We overrule Thompson’s first

issue.

In his third issue, Thompson contends he should be credited amounts he paid

in taxes and fees that were assessed against the Property. We construe his argument

to be that the trial court erred in determining that he was not entitled to recover on

his equitable reimbursement counterclaim. As stated, we have no reporter’s record

to show what evidence was before the trial court at the July 12, 2022 final hearing.

Accordingly, we must presume that evidence supports the judgment. See Lyons,

2016 WL 3564210, at *2. We overrule Thompson’s third issue.

For the same reason, we must overrule Thompson’s fourth and sixth issues in

which he asserts, respectively, that: (1) the Property should be the subject of a

probate proceeding and title transferred to the legal heirs; and (2) appellees should

be ordered to sell the Property to him, pursuant to an agreement between the parties,2

or he should be granted “a first right of refusal to purchase the Property for a price

not to exceed the highest offer received.” Nothing in the record before us shows that

Thompson presented these arguments, or any evidence in support, to the trial court

during the July 2022 hearing.

2
Thompson’s brief asserts that he submitted a written offer to appellees to purchase the Property, but
the only evidence he cites in support is a document attached to the ex parte motion for restraining order that
he filed in January 2023, more than five months after the trial court signed the final judgment. Also, he
cites to no record evidence to show appellees’ agreement.
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Thompson lists a seventh issue regarding whether this Court should “enforce

a sale already in escrow” between him and appellees. It is unclear if this “sale”

relates to the agreement that Thompson refers to in his sixth issue. In any event, he

presents no argument on this issue in his brief. To present an issue to this Court, a

party’s brief shall contain, among other things, a clear and concise argument for the

contention made with appropriate citations to authorities and the record. TEX. R.

APP. P. 38.1(i); Washington, 362 S.W.3d at 854–55. Bare assertions of error,

without argument or authority, waive error. See Sullivan v. Bickel & Brewer, 943

S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied). Because Thompson has

not adequately briefed this issue, he has waived it on appeal. Washington, 362

S.W.3d at 854–55. Accordingly, we will not consider his seventh issue.

Ex Parte Motion for Restraining Order

In his second issue, Thompson complains of the trial court’s failure to rule on

his January 10, 2023 ex parte motion requesting that the trial court overturn the

judgment and enjoin appellees from selling the property.

Generally, a trial court lacks power to act in a case after its plenary power

expires. In re Lopez, Nos. 05-22-00793-CV, 05-22-00794-CV, 2022 WL 17261156,

at *3 (Tex. App.—Dallas Nov. 29, 2022, orig. proceeding) (mem. op.). A judicial

action taken after plenary power expires is void. State ex rel. Latty v. Owens, 907

S.W.2d 484, 486 (Tex. 1995) (per curiam). By default, a trial court’s plenary power

expires thirty days after the final judgment is signed. TEX. R. CIV. P. 329b(d).

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Here, the trial court’s final judgment was signed on July 28, 2022. No

appropriate motion to extend the trial court’s plenary power was filed within thirty

days of the judgment. See TEX. R. CIV. P. 329b(e), (g). Accordingly, the trial court’s

plenary jurisdiction expired on August 29, 2022, see TEX. R. CIV. P. 329b(d), and it

lacked power to act on Thompson’s subsequently-filed ex parte motion. See TEX.

R. CIV. P. 329b(f) (explaining the limited actions a court may take after plenary

power expires). Therefore, we must conclude the trial court did not err in failing to

rule on the motion. We overrule Thompson’s second issue.

Attorney’s Fees

In his fifth issue, Thompson contends that the trial court erred in awarding

attorney’s fees to appellees. Appellees agree.

Appellees sought and obtained a judgment in a suit for partition. Generally,

a party in a partition suit is not entitled to recover attorney’s fees because there is no

statutory authorization for the award of fees. Barlow v. Richardson, No. 05-21-

00844-CV, 2023 WL 195419, at *3 (Tex. App.—Dallas Jan. 17, 2023, no pet.)

(mem. op.); Morris v. Hudson, No. 12-16-00114-CV, 2017 WL 2665181, at *5 (Tex.

App.—Tyler June 21, 2017, pet. denied) (mem. op.); see also TEX. PROP. CODE ANN.

§ 23.001–.005 (partition statutes). Accordingly, we likewise conclude that the trial

court erred in award appellees $4,000 in attorney’s fees to be paid from Thompson’s

proceeds from the Property’s sale. We sustain his fifth issue.

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Conclusion

We reverse the award of $4,000 in attorney’s fees to appellees, modify the

judgment to remove the award of attorney’s fees, and affirm the judgment as

modified.

/Craig Smith/
CRAIG SMITH
JUSTICE

230046F.P05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LEON THOMPSON, Appellant On Appeal from the 101st Judicial
District Court, Dallas County, Texas
No. 05-23-00046-CV V. Trial Court Cause No. DC-19-08105.
Opinion delivered by Justice Smith.
EARLENE O’NEAL AND DORIS Justices Miskel and Breedlove
BROUGHTON, Appellees participating.

In accordance with this Court’s opinion of this date, we REVERSE the trial
court’s award of $4,000.00 in attorney’s fees to appellees EARLENE O’NEAL
AND DORIS BROUGHTON and MODIFY the judgment to remove the award of
attorney’s fees. We AFFIRM the judgment as modified.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 27th day of June 2024.

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