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Caviness v. High Profile Promotions, Inc.

Court of Appeals of Texas, Third District, Austin

April 5, 2019

Christopher Caviness, Appellant
High Profile Promotions, Inc., Appellee


          Before Chief Justice Rose, Justices Goodwin and Kelly



         High Profile Promotions, Inc. ("High Profile") sued Christopher Caviness for breach of contract and for breach of the implied warranty of merchantability brought under the Texas Deceptive Trade Practices Act (DTPA), alleging that Caviness failed to design and develop a web portal for High Profile in accordance with the parties' agreement. Following a bench trial, the trial court signed a final judgment awarding actual damages and attorney's fees to High Profile. Caviness timely filed a notice of appeal challenging, in part, the jurisdiction of the trial court and the sufficiency of the evidence supporting High Profile's DTPA claim. For the reasons that follow, we will affirm the trial court's judgment.


         High Profile is a Texas corporation that operates a "full service talent and promotional modeling agency" based in Austin, Texas. According to High Profile, its business consists of hiring and providing models to promote events, such as trade shows, banquets, and golf tournaments. To assist in its business operations, High Profile uses an online web portal "to allow its customers and models to book and view customer engagements or events." At trial, Malissa Markley, president of High Profile, explained that the web portal also allows the models to fill out a "recap" after a particular event, providing certain details for the client about the event, such as "how many customers, how many people sampled, customer comments, [and] how many people bought the product."

         In September 2012, High Profile met with Caviness, a web developer, to discuss the potential development of a new web portal to replace High Profile's existing portal. At the conclusion of the meeting, High Profile and Caviness orally agreed that Caviness would develop the new web portal and bill High Profile at a rate of $75 per hour, and Caviness estimated that he could complete the project for $30, 000 to $40, 000. Caviness began billing High Profile for his work on the project that same month.

         The projected launch date for High Profile's new web portal was January 2013, but the launch was postponed after problems arose during a preliminary demonstration. From January to June 2013, Caviness continued to design and develop the portal, and High Profile managers continued to test the portal and then communicate by e-mail with Caviness regarding issues. According to High Profile area manager Kimberly Howerton, High Profile managers would report discovered problems to Caviness, who would report back that "he had worked out bugs in the system," but the system still would not operate as needed.

         The web portal eventually went "live" in June 2013, and according to High Profile, it immediately experienced numerous problems with its operation. Among other things, "recaps, a critical part of [High Profile's] business operations, often would not match to the correct event," and according to Howerton, this failure of the recapping functionality prevented High Profile from being able to invoice its clients and, as a result, from paying its models. By mid-July of 2013, after continued problems with the new web portal, High Profile made the decision to discontinue Caviness's services, abandon the project, and revert back to using its old web portal.

         In March 2014, High Profile filed suit against Caviness, asserting a breach-of-contract claim and a DTPA claim for breach of warranty and seeking to recover actual damages and attorney's fees. Representing himself pro se, Caviness filed an "original answer," in which he generally denied all of High Profile's allegations; stated that he was not a resident of Texas; broadly challenged the court's "jurisdiction and venue"; and moved for a dismissal of High Profile's claims on grounds that the claims were "based on improper jurisdiction and venue," "baseless causes of action," "unenforceable [and] unlawful," and an "attempt to perpetuate a fraud." Caviness also asserted various counterclaims, including breach of contract, and requested awards of actual and exemplary damages along with injunctive relief.

         Following a bench trial, the trial court signed a final judgment ordering that Caviness take nothing on his counterclaims and awarding High Profile $99, 184.34 in actual damages, plus attorney's fees. At Caviness's request, the trial court filed findings of fact and conclusions of law. See Tex. R. Civ. P. 296 (requests for findings of fact and conclusions of law). Among other things, the trial court determined that Caviness (1) breached an oral contract with High Profile to develop a web portal, (2) breached the implied warranty of merchantability, and (3) committed a DTPA violation against High Profile, a consumer under the DTPA. With respect to damages, the trial court found that High Profile had incurred out-of-pocket damages in the amount it had paid to Caviness, $88, 553.00, and that High Profile had incurred consequential damages in the amount of the web-hosting fees it had paid from December 2012 to March 2015, $12, 731.34. Based on its findings of fact, the trial court concluded, in part, that:

[1.] [Caviness] is liable to [High Profile] for the principal sum of $101, 284.34, less a credit that the Court granted to [Caviness] for work he performed in assisting in the recovery of [High Profile's] website, for a total of $99, 184.34 in damages.
[2.] [High Profile] is entitled to its reasonable attorney's fees in the amount of $19, 387.80.

         Representing himself pro se in this appeal, Caviness raises what he identifies in his brief as thirteen discrete legal issues. In general, Caviness challenges the final judgment of the trial court on grounds that (1) the court lacked subject-matter jurisdiction over the dispute; (2) the court lacked plenary jurisdiction when it signed the final judgment, and consequently, the judgment is void; (3) the trial court erred in concluding that Caviness's special appearance was unsworn and waived; (4) the evidence is insufficient to support the trial court's award of consequential damages; and (5) the evidence is insufficient to support the trial court's findings supporting liability under the DTPA.


         I. Briefing Waiver

         As a preliminary matter, we first address High Profile's argument that Caviness's brief wholly fails to comply with appellate briefing requirements under Texas Rule of Appellate Procedure 38 and that, as a result, he has failed to preserve any issue for our review.

         Rule 38 expressly sets forth what must be included in an appellant's brief. See Tex. R. App. P. 38 ("Requisites of Briefs"). In part, the Rule requires that an appellant's brief "state concisely all issues" to be decided by the appellate court and "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Id. R. 38.1(f), (i). An appellant's brief must "articulate the question to be answered" and then "guide [the court] through the appellant's argument with clear and understandable statements of the contentions being made." Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.-Dallas 2010, no pet.). "An appellate court has no duty-or even right-to perform an independent review of the record and applicable law to determine whether there was error." Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no pet.). In addition, we are required to hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. Amir-Sharif v. Mason, 243 S.W.3d 854, 856 (Tex. App.-Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)). To do otherwise would give pro se litigants an unfair advantage over litigants represented by counsel. Mansfield, 573 S.W.2d at 185.

         Applying this standard to Caviness's appellate brief, we conclude that with respect to many of his issues, Caviness fails to articulate a clear legal issue to be decided or, to the extent we can discern a cognizable issue, to make understandable arguments in support of his position. Many of the arguments presented by Caviness in support of various issues are repetitive, and several of the issues appear to overlap in that they turn on the same argument. Moreover, Caviness often fails to identify any controlling legal principle or authority and does not cite or even reference the relevant portions of the record. Accordingly, we will decide the issues before us to the extent we can discern them; any issues not specifically addressed are considered waived. See Caldwell v. Garfutt, No. 03-14-00019-CV, 2016 Tex.App. LEXIS 62, at *11 (Tex. App.-Austin Jan. 7, 2016, pet. denied) (mem. op.) (addressing "issues [raised by pro se appellant] as best as we can"); see also Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983) ("Points of error must be supported by argument and authorities, and if not so supported, the points are waived.").

         Because they are potentially dispositive of this appeal, we begin by considering Caviness's challenges to the trial court's jurisdiction, including Caviness's complaint that the trial court ...

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