in the Estate of Dorothy P. Massey

Opinion issued July 17, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00196-CV

HENRY P. MASSEY, Appellant

V.

JOHN H. MASSEY, AS INDEPENDENT EXECUTOR OF THE ESTATE

OF DOROTHY P. MASSEY, AND GAYLE SCOTT BARNETT, Appellees

On Appeal from the 2nd 25th District Court

Colorado County, Texas

Trial Court Cause No. 20,072

MEMORANDUM OPINION

Pro se appellant, Henry P. Massey (“Henry”),

complains of the trial court’s

order directing that the remains of Henry’s daughter, Courtney S. Massey

(“Courtney”), be disinterred and moved to another cemetery plot within the same

cemetery. The order was entered relating to the probate of the estate of Henry’s

mother, Dorothy P. Massey (“Dorothy”). In two issues, Henry (1) contends that

Dorothy’s last will and testament precludes the entry of such an order and (2) alleges

that unspecified attorneys involved with this matter engaged in unethical practices.

We affirm.

Background

Appellee, John H. Massey (“John”), as independent executor of Dorothy’s

estate, filed a motion for declaratory relief.

John sought to have Courtney’s remains

disinterred from a cemetery plot (“the plot”) owned by Dorothy’s estate.

The plot was one of six plots that were purchased by Dorothy’s grandmother

in the Masonic Cemetery for the burial of Dorothy’s grandmother and grandfather,

Dorothy’s mother and father, and Dorothy and her husband. Dorothy’s grandparents,

parents, and husband predeceased Dorothy and were buried in five of the six plots.

Dorothy owned the remaining, unused plot. The plot passed to Dorothy’s estate when

she died in 2001.

Courtney tragically and unexpectedly died in 1993. In the tragedy of the

situation, Courtney was buried in the last of the six plots, the plot intended as

Dorothy’s place of burial.

In 1995, Dorothy wrote a letter addressed to a funeral home authorizing it to

disinter Courtney’s remains and re-inter them in another location within the same

cemetery. Dorothy’s letter was attached in support of John’s motion for declaratory

judgment. John also attached the affidavit of appellee, Gayle Scott Barnett,

Courtney’s mother, to support the motion. In her affidavit, Barnett gave her consent

to disinter Courtney’s remains.

As an interested party, Henry received notice of the motion for declaratory

judgment. Following a hearing, the trial court signed an order on December 19, 2001.

The order directed Courtney’s remains to be disinterred “within fourteen days of the

entry” of the order. Courtney’s remains were not disinterred during that 14-day

period.

On February 1, 2002, Barnett filed a “Joinder in Request for Declaratory

Judgment.” In the joinder, Barnett stated that she had no objection to the relief stated

in the December 19th order, but she asserted that a supplemental order should be

entered directing that Courtney’s remains be re-interred in a different plot in the

Masonic Cemetery. On February 11, 2002, the trial court signed an order directing

that “upon the disinterment of the remains of Courtney S. Massey pursuant to this

Court’s Order dated December 19, 2001, those remains shall be re-interred in burial

lot No. 431 of the Masonic Cemetery.”

Henry filed a notice of appeal on February 20, 2002.

Discussion

Issue One

In his first issue, Henry contends that Dorothy’s last will and testament

precluded the trial court’s order granting the relief sought by John in the motion for

declaratory relief. Relating to this issue, the “Background” section of Henry’s

briefing states, “A refilling [sic] of the Declaratory Judgment would be ‘illegal’ under

the Last Will and Testament of Dorothy P. Massey, paragraph Seventh #4.”

The

entirety of Henry’s “argument” offered in support of this issue is as follows:

Basis for error can be found in Salazar Canales 85 SW 3d 859 [sic] and

Johnson v. Forth Court of Appeals 700 SW 2nd 917 [sic]. The original

Declaratory Judgment was precluded by the Last Will and Testament of

Dorothy P. Massey. The Court[’]s Order and authorization of the

reinterment [sic] of the remains in a lot other than decedent Courtney S.

Massey’s own lot is bizzar [sic].

Although we may read the language of pro se documents broadly, we do not

otherwise apply lesser standards for the benefit of pro se litigants. White v. Cole, 880

S.W.2d 292, 294 (Tex. App.—Beaumont 1994, writ denied) . Pro se litigants are held

to the same standards as licensed attorneys; therefore, they must comply with all

applicable rules of procedure. Clemens v. Allen, 47 S.W.3d 26, 28 (Tex.

App.—Amarillo 2000, no pet.) ; Chandler v. Chandler, 991 S.W.2d 367, 378-79 (Tex.

App.—El Paso 1999, pet. denied ).

Failure to brief, or to adequately brief, an issue by an appellant effects a waiver

of that issue on appeal. See Tex. R. App. P. 38.1(h); Wheeler v. Methodist Hosp. , 95

S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Rule of appellate

procedure 38.1(h) states that a “brief must 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(h) . Failure to either cite authority or advance substantive

analysis waives the issue on appeal. See Wheeler , 95 S.W.3d at 646 . Here, Henry

fails to provide any substantive analysis as to how Dorothy’s last will and testament

precludes the trial court’s order.

Henry also fails to explain how the cases he has cited relate to this issue.

Presumably, Henry has cited Salazar v. Canales , 85 S.W.3d 859, 862 (Tex.

App.—Corpus Christi 2000, no pet.) and Johnson v. Fourth Court of Appeals , 700

S.W.2d 916, 917-18 (Tex. 1985) for each case’s statement of the abuse-of-discretion

standard of review. However, Henry failed to (1) show that such standard is the

correct standard of review to apply here, (2) apply that standard to the facts of this

case, or (3) explain how the trial court abused its discretion. Moreover, Salazar and

Johnson are factually inapposite to this case. See Salazar , 85 S.W.3d at 862-65

(determining whether trial court abused its discretion in dismissing plaintiff’s medical

malpractice claims for failure to file medical-expert report); Johnson , 700 S.W.2d at

916 (deciding whether trial court has discretion to grant new trial in “the interest of

justice”).

Lastly, the pages in the record to which Henry refers have no bearing on the

stated issue.

It is not this Court’s duty to review the record, research the law, and fashion

a legal argument for an appellant when he has failed to do so. Because Henry’s brief

does little more than summarily state his issue, without citations to appropriate legal

authority or substantive analysis, it is not sufficient to acquaint this Court with the

issue and does not present an argument that would allow us to decide the issue.

See

Wheeler , 95 S.W.3d at 646 .

We overrule Henry’s issue one.

Issue Two

In issue two, Henry complains that unspecified attorneys in this case acted

unethically by failing to disclose certain facts to the trial court. Henry failed to raise

this concern in the trial court, or if he did, it is not reflected in the record. As such,

the issue is not properly before our Court. To preserve an issue for appellate review,

an issue must be raised with the trial court. Tex. R. App. P. 33.1.

We overrule issue two.

Conclusion

We affirm the trial court’s order.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.