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Pempsell v. Birt

Court of Appeals of Texas, Second District, Fort Worth

October 31, 2019

Robin E. Pempsell, Appellant
v.
Megan N. Birt, Appellee

          On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-642296-18

          Before Sudderth, C.J.; Womack and Wallach, JJ.

          MEMORANDUM OPINION

          DANA WOMACK JUSTICE

         I. Introduction

         In this appeal, appellant Robin E. Pempsell challenges the trial court's issuance of a fifteen-year default protective order entered against her. In two narrow issues, Pempsell complains of trial court error related to the protective-order hearing and to the purported testimony of the applicant's attorney during the hearing on Pempsell's motion for new trial. Because Pempsell has inadequately briefed her first issue and has failed to preserve her second issue, we will affirm the trial court's order.

         II. Background

         On June 8, 2018, Meagan[1] N. Birt applied for an Article 7A protective order against Pempsell, her former mother-in-law, and alleged that Pempsell had engaged in stalking.[2] On June 14, 2018, Pempsell appeared pro se for the scheduled protective-order hearing and signed a document in which she acknowledged that she had been advised by the trial court of her right to employ an attorney to represent her presently or at a later time and declared that she would represent herself at the hearing.

         According to Assistant Criminal District Attorney Cynthia Gustafson, who was pursuing the protective order on Birt's behalf, the trial court asked the parties to reschedule their hearing because of its full docket. Gustafson had a two-hour discussion with Pempsell regarding the options available to the parties. Although Gustafson and Pempsell later disagreed about the result of that discussion, Gustafson stated at the hearing on the motion for new trial that Pempsell "appeared to have a very good understanding that her decision to leave the courthouse and the proceedings would result in a final protective order being placed against [Pempsell] for a period of [fifteen] years" and that she would be unable to communicate with her grandchildren for the next fifteen years.[3]

         Later that day, after Pempsell had left the courthouse, Gustafson secured the default protective order from another judge based on Birt's testimony. Pempsell subsequently filed a verified motion for new trial. At the hearing on the motion for new trial, while her attorney stated what Pempsell would testify to if called, Pempsell did not testify. The trial court denied the motion for new trial.

         III. Discussion

         A. Sufficiency of the Evidence and Inadequate Briefing

         Pempsell does not raise any broad issues claiming that the trial court erred in granting the default protective order or in failing to grant the motion for new trial. Rather, in her first issue, Pempsell contends that "[t]he trial court erred in issuing a permanent protective order without a hearing to determine 'whether there are reasonable grounds to believe that the applicant [Birt] is the victim of . . . stalking . . . [.]"

         In three paragraphs, Pempsell cites generally to one case and one code provision and then complains broadly of the lack of documentary evidence and of the use of leading questions at the protective-order hearing. In the first paragraph, Pempsell notes that Article 7A.03 of the Code of Criminal Procedure "requires a certain level of evidence to support issuance of a protective order" and cites Shoemaker v. State of Texas for the Protection of CL. in support of her assertion that "[o]n review, the Court of Appeals uses both legal and factual sufficiency standards." 493 S.W.3d 710, 715 (Tex. App.-Houston [1st Dist] 2016, no pet.). In her second paragraph, Pempsell notes-without citation to authority-that "[u]nder a legal sufficiency standard, evidence is considered in the light most favorable to the prevailing party" and then complains that "the only such evidence" was Birt's testimony about Pempsell's uninvited attempts to see Birt's children. Pempsell also complained that Birt failed to proffer "a Police report" or "any documentary evidence" to support her protective-order application. In her third paragraph, Pempsell asserts that "[u]nder the Factual Sufficiency Challenge, this Court must 'examine all of the record evidence'" and cites to the single case referenced in the first paragraph. Pempsell argues, "There is no record evidence so that the appellee cannot bear the burden on appeal imposed by . . . Shoemaker[.]" See Shoemaker, 493 S.W.3d at 715. She also complains that during the protective-order hearing, Gustafson spoke for four minutes and asked Birt only leading questions. Pempsell concludes her issue by stating, "Litigation moves right along when one side convinces the other side to leave the courthouse."

         "The Texas Rules of Appellate Procedure require adequate briefing." ERI Consulting Eng'rs, Inc. v. Swinnea,318 S.W.3d 867, 880 (Tex. 2010). An appellate brief must contain a clear and concise argument for the contentions made in the brief, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1 (i). An issue presented in a brief is sufficient if it directs the reviewing court's attention to the error about which the complaint is made. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.-El Paso 2007, no pet.). However, an appellant's failure to cite legal authority or provide substantive analysis of a legal issue presented results in waiver of the appellant's complaint. Flores v. James Wood Fin. LLC, No. 02-13-00022-CV, 2013 WL 3064455, at *1 (Tex. App.-Fort Worth June 20, 2013, no pet.) (citing Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (recognizing longstanding rule that error may be waived due to inadequate briefing) and Valadez , 238 S.W.3d at 845). We have no duty to perform an independent review of the record and applicable law to determine whether the purported error of which a party complains occurred. Karen Corp. v. Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 125 (Tex. App.-Fort ...


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