Court of Appeals of Texas, Fifth District, Dallas
MICHAEL D. WILSON, Appellant
WOODLAND HILLS APARTMENTS AND LUMACORPS INCORPORATED, Appellees
Appeal from the County Court at Law No. 2 Dallas County,
Texas Trial Court Cause No. CC-15-05747-B
Justices Francis, Myers, and Whitehill
D. Wilson appeals the trial court's take-nothing summary
judgment on his claims against Woodland Hills Apartments and
LumaCorps Incorporated, the landlord and property manager of
the apartment from which he was evicted. Appellant raises
three issues. We conclude they are without merit and affirm
the trial court's judgment.
represented himself in the proceeding below and is
representing himself on appeal. The record shows he leased an
apartment at Woodland Hills Apartments under a one-year
contract that began in December 2014. When appellant failed
to pay the rent during the lease term, Woodland Hills gave
him notice to vacate. Appellant did not leave, and Woodland
Hills filed a forcible detainer action. Following a trial de
novo in county court at law, Woodland Hills was awarded
possession of appellant's leased premises. The trial
court set a supersedeas bond to be paid within ten days.
Appellant did not pay the bond by the deadline, and Woodland
Hills obtained a writ of possession. On the same day the writ
of possession was executed, appellant filed his supersedeas
the writ of possession was executed, appellant filed this
lawsuit against appellees, alleging wrongful eviction,
retaliation, statutory repair and remedy violations, and
violations of the Texas Penal Code, the Texas Occupations
Code, and various other federal statutory and constitutional
provisions. Appellees generally denied the allegations and
later filed special exceptions. Before the special exceptions
were heard, appellant amended his petition to drop some
allegations and replead others. Thereafter, appellees filed a
motion for traditional and no-evidence summary judgment to
which appellant responded on the day before the hearing.
Appellees moved to strike the response as untimely. The trial
court granted the motion and struck appellant's response.
The trial court granted appellees' motion for summary
judgment without stating the grounds and dismissed
appellant's claims. This appeal followed.
turning to the merits of this appeal, we begin by addressing
issues related to his brief. In general, a brief must state
concisely all issues for review and reveal the legal
questions we are called upon to decide. See Tex. R.
App. P. 38.1(f); Bolling v. Farmers Branch Indep. Sch.
Dist., 315 S.W.3d 893, 896 (Tex. App.-Dallas 2010, no
pet.). The appellate rules also require a brief to contain a
clear and concise argument for the contentions made with
appropriate citations to the authorities and the record.
Tex.R.App.P. 38.1(i). We have no right or obligation to
search through the record to find facts or research relevant
law that might support an appellant's position because
doing so would impermissibly transform this Court from
neutral adjudicators to advocates. Lau v. Reeder,
No. 05-14-01459-CV, 2016 WL 4371813, at *2 (Tex. App.-Dallas
Aug. 16, 2016, pet. denied) (mem. op.). We are not required
to consider evidence attached as exhibits or appendices to
the briefs where no citation to the record is provided.
See Tex. R. App. P. 38.1(h); Ranger Ins. Co. v.
State, 312 S.W.3d 266, 270 (Tex. App.-Dallas 2010, pet.
dism'd, untimely filed) (explaining attachments to brief
are not substitutes for citations to record).
appellant's brief lists two "Issues Presented,
" the body of his brief appears to identify three
issues. The substantive briefing of these issues lacks
clarity, and it is at times difficult to determine
appellant's precise complaint. Additionally, he
frequently cites to exhibits to his brief rather than the
record to support various statements or positions. We have
attempted to discern each of appellant's arguments and,
where properly briefed, will address each in turn.
first issue, appellant complains the trial court erred by
considering appellees' motion for summary judgment
without first considering appellees' special exceptions.
By doing so, he contends he was not permitted the opportunity
appellant did replead. After appellees filed their special
exceptions, appellant filed his first amended petition,
thereby mooting appellees' special exceptions. See
Wang v. Univ. of Tex. at Austin, No. 04-13-00065-CV,
2013 WL 5570824, at *2 (Tex. App.-San Antonio Oct. 9, 2013,
no pet.) (mem. op.). An amended pleading takes the place of
the original pleading and all prior pleadings are superseded
and are no longer a part of the live pleadings. Tex.R.Civ.P.
65; Sheerin v. Exxon Corp., 923 S.W.2d 52, 55 (Tex.
App.-Houston [1st Dist.] 1995, no pet.). Because the special
exceptions were moot, the trial court did not err in failing
to rule on them. Wang, 2013 WL 5570824, at *2.
Moreover, we note appellees did not move for traditional
summary judgment on the basis that appellant failed to state
a cause of action or any other pleading defect. Appellees
instead moved for traditional summary judgment on
appellant's claims for wrongful eviction, retaliation,
and failure to repair and remedy violations by presenting
evidence to establish their right to judgment on these claims
as a matter of law. We overrule the first issue.
second issue, appellant argues appellees lacked standing to
sue him for eviction because the apartment manager was not a
licensed real estate broker, rendering the contract null and
void. He relies on section 1101.351 of the occupations code
to support his position. But as asserted by appellees in the
motion for summary judgment and on appeal, the premise of
appellant's argument is incorrect. The requirements of
chapter 1101 of the occupations code, known as the Real
Estate License Act, do not apply to on-site managers of
apartment complexes. See Tex. Occ. Code Ann. §
1101.005(7) (West Supp. 2016). We overrule the second issue.
third issue, appellant argues appellees retaliated against
him in violation of sections 92.331 and 92.332 of the Texas
Property Code because he made a complaint against them with a
federal agency. We broadly construe this issue to challenge
the summary judgment on his retaliation claim.
their motion for traditional summary judgment, appellees
raised two grounds on appellant's retaliation claim: (1)
the claim is barred as a matter of law because appellant was
delinquent in rent when the landlord gave notice to vacate
and (2) the claim was barred by res judicata. But appellant
has not challenged either ground on appeal. Accordingly, he
cannot show error. See Malooly Bros., Inc. v.
Napier, 461 S.W.2d 119, 120-21 (Tex. 1970) (appellant
must challenge each ground asserted if trial court does not
specify ground on which summary judgment is rendered);
See Worldwide Asset Purchasing, LLC v. Rent-A-Center E.,
Inc., 290 S.W.3d 554, 569 (Tex. App.-Dallas 2009, no
pet.) (concluding that if party fails to challenge one of
grounds for summary judgment, appellate court may affirm on
evictions based on nonpayment of rent do not constitute
retaliation if the tenant is delinquent in rent at the time
the landlord gives notice to vacate or files an eviction
action. Tex. Prop. Code Ann. § 92.332(b)(1) (West 2014).
Appellees' evidence shows that appellant was delinquent