1 John T. Boyd, Chi ef Justice (Ret.), Seventh Court of Ap peals, sitting by

assignment

. NO. 07-01-0149 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E SEPTE MBE R 24, 2003

______________________________ JAMES S EYMOUR, AP PELLANT

V. LUMBER SPECIALTIES, IN C., APPELLEE

_________________________________ FROM THE COUNT Y CIVIL COURT AT LAW NO. 2 OF HARR IS COUNTY; NO. 736,398; HON ORABLEGARY M ICHAEL BLOCK, JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN, J., and BOYD, S.J. 1 MEM ORAN DUM OP INI ON Jam es Sey mour a pp eals from a judgm ent in which he w as found j ointly and severa llyliableto L um ber Sp ecia lties , In c., in a suit on account . He asserts challenges to the legal and factual sufficiency of the evidence. We affirm.2 No assertion was m ade that Lex us wasa corporation. 2 BACKGROUND Lumbe r Specialti es, Inc. (“LSI”) sued J ames Seym our and Dennis Kelly d/b/a Lex us Fence Com pany (“Lexus”) on an account for lum ber sold and delivered. LSI carried the account as Lexus Fence Company. 2 Trial was to the court. Findi ngs of fact and conclusions of law w ere filed. Seym our appeals vi a four issues a sserting l egal and fa ctual i nsuffici ency issues. In conducting a legal sufficiency review, w e review the evidence in a light thattends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. See Lee Lewis Cons tr., Inc. v. H arrison , 70 S.W .3 d 7 78 , 7 82 (T ex. 2001); Bradfo rd v. Vento , 4 8 S. W .3 d 7 49 , 7 54 (T ex. 2001) . If m ore than a scintilla of evidence exists, the evidence is legally sufficient. LeeLew is Const., Inc. , 70 S.W.3d at 782 . Mor e than a scintilla of evidence exists if t he e vid ence furnishes som e reasonable basis for differing conclusions by reasonable minds about avital fact's existence. Id . at 782-83. W hen consideri ng a factual suf ficie ncy chall enge to a tri al court’s f indings , appellate courts mu st consider

and weigh all of the evidence, not jus t that evidence w hich supports the verdict. See Ma ritim e Overs easCor p. v . E llis , 971 S. W .2d 402, 406-07 ( Tex. 1998); Ort iz v. Jones , 917 S.W.2d 770, 772 (Tex.1996); Lofton v. Texa s Brine C orp ., 720 S.W.2d 804, 805(Tex .1986). A court of appeals can set aside a tri al court fi nding onl y if it i s so contrar yto t he o ver

w helm ing w

eigh t of theevid ence th at t he verd ict is c lear lywrong and3

unjust. See Maritime Overseas Corp. , 971 S.W.2d at 407 . Courts of appeals ar e not fact finders and m ay not

pass upon the w itnesses' credibility or substitute its judgm ent for that of the trier of fact, even if the evidence would clearly support a different result. Id. ISSUE ONE: NO E VIDENCE SEYMOUR PURCHASED THE LUMBER Seymour’s brie f in reg ard to the first issue cites tw o authorities for the general appellate legal insufficiency standard of review. H e ci tes no authority for assertions related to his own case, nor doe s he m ake any record references. See T EX . R. A PP . P. 38.1(h). He doe s not c hallenge a pa rticular finding of fact , but, rather, states generally that LSI “ . . . m ust prove that the m aterials they sold to LexusFence Com pany from Novem ber 19, 1999 to January 20, 2000 w ere purchased by Jam es Seym our, or that Jam es Seym our wasa principal of Lexus Fence Com pany-either as owner or partner.” By w

ay of example, we are not cited to any authority either setting out elem ents of a “principal” or

“partner ”; giving analysis or precedent guiding our review of the ev idence and inferences fromit; or establi shing the extent of hi s possibl e liab ili ty, if any, as an “o wner” of Lexus. Error ma y be waived by

inadequate briefing. See , e.g. , Fredonia Stat e Bank v. Gen. Am . Life Ins. Co. , 881 S.W. 2d 279, 284 (Tex. 1994); Trenholm v. Ratcliff , 646 S

. W .2d 927, 934 (Tex. 1983); Gulf Coast State B ank v. Em enhiser , 562 S.W.2d 449, 452-53 (Tex. 19 78). A contention on appeal is waived by failing to cite authority. See Metzger v. Sebek , 892 S.W.2d 20, 45 (Tex.App.--Hou ston [1st Dist.] 1994, writ denied). And, an appellate court is not required to ma ke an independent, unguided search of the4

record for evidence supporting a party’s position or to determ ine the validity of an issue. See T EX . R. A PP . P. 38. 1(h); Fredonia State Bank , 881 S.W.2d at 283; Sa ldan a v. Gar cia , 285 S.W.2d 197, 201 (Tex. 1955). We do not consider m ere citation for the standard of review , with no further citation to authority or reference to the record as briefing adequate to present error for review

. Moreo ver, LSI’s am ended petition on which the parties w ent to trial alleged tha t lumber m aterials w

ere supp lied to and a ccepte d by “D efendan ts.” On direct exam ination, LSI witness R .C. McCord testifi ed that he had known Seymour for about 20 years; Seym our used to own S eym ourFence; in 1999 McCo rd started doing business w ith Seym our again and “it wa s under Lex us Fence.” M cCord also testified that the lumber LSI so ld to L ex us w

as u sed to b uild f

ences; thedef

end ants “u sed tha t lum ber in t heir business ”; Seym our actually ordered the goods and picked them up; both Seym our and Ke llyordered m aterials; McCord’s understanding w as t hat in N ove m ber , 19 99, Ke llywas one of the ow ners of Lex us; the credit application filled out for LSI said that Seym our was the owner; bot h Seym our and Kelly told McCord that Kelly “was also an ow ner.” Seym our testified that he sign ed a cre dit a ppli cati on for LSI in which he indicated that he w as owner of Lexus. The credit application was not adm itted into evidence, but the testim ony of both McCord and S eym our as to its contents w as adm itted without obj ection.5

Appellant has waived error. E ven if error had been preserved by proper briefing, lega llysufficient

evidenceexist

s to su pport

findings that Seym our was bot h a principal in and an owner of Lexus. Appellant’s first issue is overruled.

ISSUE TWO : FACTUAL SUFFICIENCY OF THE EVIDENCE Seymour’s second issue urg es t hat thetria l cou rt’ s fi ndin g th at S eym our w as li able to LSI for the account was contrary to the overwhelming weight of the evi dence. He spe cifi cally

references Fi nding of F actII. Just as in his first issue, he urges that in order to prevail, LSI had to show that Seym our was a principal, owner or partner i n Lexus. He then cites authority for factual sufficiency standards of review. He offers no further aut hor ity and doe s no t re fer ence th e re cor

d in h is argum entand authori ties secti on. He has w aived error

. Furthermore, we recognize that McCord’s testi mony cited in our di scussi o n of Seymour’s firstissue was controverted by Sey mour. The trial court as finder of fact is to analyze suc h co nflic

ts a nd in con sis ten ciesin testimon y. We do not sit a s a fac t finder. We ma y not pass j udgme nt on credibility of witnesses or substitute our j udgme nt for that of the factfinder, even if the evidence w ould clearly support a differen t result. See Ma ri ti me Overseas Corp. , 971 S.W.2d at 407; Pool v. Ford Motor C o. , 715 S.W.2d 629, 634 (Tex . 1986). We defer

to the trial court’s resolution of credibili ty of the w itnesses and conflicting testimony. The evidence is factually sufficient to support findings that Seym our was bot h6

a prin cipa l and an ow ner , w hich arethecha lleng es a sse rte d in t his i ssu e. We overr ule issue two.

ISSUES THREE AND FOUR: EVIDENCE THAT SEYMOUR

W AS A PAR

TNER DURING THE SPECIFIC DATES THE LUM BER WAS SOLD Se ymo ur’s issue th ree urges that t here is no evidenceto sup port thetrial court ’ s Finding of

Fact II that he w

as a partner

in Lexus during the tim e period when LS I sold the lumb er. He also argues that t here is no evidence he personal ly purchase d the goods. Iss ue f our ass erts fa ctu al ins uff

icien cy of t he e vide ncein the event w e find the evidence legally sufficient. Although w e fa il to seehow an e vide ntia ry c halle ngeto h is pe rso nally purchasing the lumber is an evidentiary challenge to Finding II, we disagree w ith Seym our’s assertion thatthere is no evidence he personal l y pu rch ase d th e go ods . M cC ord tes tifie d th at in 1999 LS I start ed d oing bus in es s with Se ym our under the nam e of Lexus Fence, and Seym our actually orde red th e g oo ds an d p i ck ed th em u p. Su ch te st i mon y i s s ome evidence that Seym our personally purchased the lum ber. Seym our again does not offer

any citations as to the elem ents of partnership, how the evidence does or

does no t relate to thoseelem ents, o r in wh at spec ific m anner t h e evidence fails to show partnersh ip. He offers citations referencing agency and the liabil ity7

of agents for principals. But, even th ose ci tations do no t discuss el ements of agents, princi pals, or relate specifics of the evidenc e to his cit ations. Nor does he ex plain how such cit atio ns a nd t he p rinc iplesref ere nce d re lateto h is evidentiary challenges to Finding II that he w

as a partner in Lexus

. Seymour’s briefing is inade quate to challenge Finding of Fa ct II. He has w aived error. W e overru le issues t hree and four. UNCHALLENGED GROUNDS SUPPORTING JUDGMENT W hen a separate and independent ground that supports a j udg ment is no t challenged on appe al, the ap pellate cour tmu st affirm the lower

court's j udgme nt. See San An ton io Press v. C ustom Bilt Mach. , 852 S.W.2d 64, 65 (Tex.App.--S an Antonio 1993, no writ); Herndon v. First Nat'l Bank of Tulia , 802 S.W.2d 396, 400 (Tex.A pp.--Am arillo 1991, w rit denied). Seym our does not challenge the trial court’s expres s Findings of Fact III and IV by any of h is issues. Those f

indings are that Lexu s purchased lum ber on account from LSI in the amo unt of $40,394.39, and d efendants faile d to pay LSI f or the lumber purchased on account. Seym our did not request any additional or am ended findings. See T EX . R. C IV . P. 298. B ecause he did not request additional or am ended findings, omitted findings in support of the j udgme nt are presum ed, if anyexpress finding is an element of a ground of recovery and t he om itted findings are supported by evidence. See T EX . R. C IV . P. 299.8

Presum ed findings that Seym our was in the fe nce business using L exus as a business nam e, L SI ex

ten ded cre dit

to Lexus based on Seymour’s applicati on in which he stated that he was the owner of L exus, and Seym our ordered and picked up the lum ber for and used it in Lexus’ f

ence business are supported by evidence. Such pre sumed findings, together with unchallenged exp ress Findings III and IV, are su pport for the j udgme nt. We are required to affirm the judgm ent on the basis of such independent grounds. CONCLUS ION Having overruled Seym our’s four issues, w e affirm thejudgm ent. Add it io na ll y, we are req uire d to affirm the judgm ent on the basis that it is supported by unchallenged indepen dent grounds.

Phil Johnson Chief Justi ce