NO. 07-04-0262-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 10, 2004

______________________________ ALEX RAY STAFFORD, Appellant

v. EDD IE ST

AFF ORD , IN DEPE NDE NT AD MIN ISTR ATOR of th e EST

ATE o f ALEX STAFFOR D, DECEASED , Appellee

_________________________________ FROM THE CO UNTY COURT OF DALLA M COUNTY; NO. 1982; HON. DAVID D. FIELD, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, REAVIS, and CAMPB ELL, JJ. Alex Ray Stafford (

Alex Ray ) appeals from a final judgment entered in favor of Eddie Stafford, as the independent a d ministrator of the estat e of Alex Staffo rd, deceased (Eddie). Eddie had initiated a forcible entr y and detainer

action agai nst Alex Ray to remove the latter from real proper

ty located in Dallam County. The l ocal justice of the pe ace granted Eddie the relief he so ught. Thereafter, Alex Ray appeale d to the County Court of Dall am Coun ty. A trial de novo was had, after whi ch judgment w as again aw

arded Eddie. Ac

ting1 Appeal from the jus tice co ur t to th e c ou nty c ou rt e ntitle s th e p ar ty to a tria l de n ovo
. T EX
. R. C IV
. P.

574 b. 2 A pro se li ti gant i s obli gated t o comport wit h the r ules of procedur e just

as one repr esen ted by an att orneyis requir ed to co m ply with them

. Ho lt v. F.F . Ente rprise s, 990 S.W .2d 756, 759 (Tex. App. –Am ar illo 1998, pet. ref’d).

3 W hile Ale x R ay s tate s th at n o re po rte r’s record was made of t he pro ce ed ing s, h e d oe s n ot c om pla in ofthat on app eal. Th us, we do not a ddress whet her t he act, assuming of cour se that it is t rue, consti tut ed erro r. 2 pro se , Alex Ray asserts seven issues before us. The first c oncerns w hether he was denied due process becau se both trial courts alleg edly barr ed him from offering “evidentiarydocuments into therec ord ” or making “any oral statements on the r ecord.” The lastsix inv

olve w hether

the trial court erred w hen it purportedly failed to follow the l aw of the case, i.e. an opinion we rendered in another cau se but apparently invo lvi ng thesame realty. We af firm the judgment of the trial cour t. Issue 1 - Du e Process Regarding the m atte r of d ue pr oces s, we o verru le th e issu e fo r seve ral reasons

. First, whether th e justice co urt afforded Alex Ray opport unity

to present oral argument and documentary evidence i s moot, for he was accorded a trial de novo in the Dall am County Court. 1 In sho rt, it matte rs not wh at occurred i n the justice court given the de novo trial conducted by t he county cour t. Next, Alex Ray failed to cite to authority or the record. Such is required by Rule 38.1(h) of the Texas Rul es of Ap pellate P rocedure. 2 This, conseq uently, r esults in the waiver of his complaint. In re B.A.B., 124 S.W.3d 41 7, 420 (Tex. App.–Da llas 2004, no pet.). Third, the appellat e record contains neither a reporter’s record of the trial nor a document illustr

ating that Al ex Ray

requested one. 3 The burden lay with hi m, as the3

appellant, to present us with a record showing reversi ble error. Englander Co. v. Kentucky, 428 S.W.2d 806, 807 (Tex. 1968); American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 240 (Tex. App. –El Paso 1999, pet. denied); Cliff v. B onner, 770 S.W.2d 97, 98 (Tex. App.–Corpus C hristi 1989, writ deni ed). Without a reporter’s record, we have no way of verifyi ng the truthfulne ss of Alex Ray’s version of what occurred at the trial . Indeed, its absence requ ires us to pr esume that t he missing r ecord actuall y supportsthe trial court’s actions, if any

. Till v. T homas, 10 S.W.3d 730, 733 (Tex. App.–Houston [1 st Dist.] 1999, no pet.); see In re Spiege l , 6 S.W .3d 643, 646 (Tex. App.– Amarillo 1999, no pet.). (holding that because the ap pellant did not request the r eporte r’s recor

d, the appellate court must presume that the missing record suppor ted the trial court’s decision). Thus, we presum e that the missi ng record legitimized what, if any thing, the trial court di d with regard to the admission of evidence and th e limitation on argument.

Issues 2, 3, 4, 5, 6, and 7 - L aw of the Case The remaining i ssues before us concern the effect of an opini on we render ed on March 14, 1995, in cause number 07- 94-0178-CV, s tyled Martin Staff ord, Trustee of

A.M. & J. Tr ust v . Eddie Stafford, Indep endent Administrator of the Estate o f Alex Stafford

. Therein, we held, according to Alex Ray , that the esta te of Alex S taf for d did not o wn the l an d in question. Furthermore, this decision purporte dly constituted the law of the case and bound the hands of both the j ustice and Dal lam County courts i n t h i s p r o c e e d i n g
. We overrule the issues for several reasons. First, to the extent that Alex Ray sought to defeat the forci b le entry suit by contending thatEddie did not ow n the property, neither the j ustice nor th e county cour t had4

the jurisdi ction to decid e ownershi p. Rice v. Rainey, 51 S.W.3d 705, 708-09 (Tex. App.– Dallas 2001, n o pet.) So, w e cannot fault them for opt ing not to addr ess that iss ue. Second, the concept known as law of the case applie s only to subsequent procee dings in the same case after an ap peal has been taken and the cause remanded. H udson v. Wakefield , 711 S.W.2d 628, 630 (Tex. 1986); Hallmar k v. Hand , 885 S.W.2d 471, 474 (T ex. A pp.–El Paso 1994, w rit denied). The forcible entr y and detainer

action between Eddie and Alex Ray, ini tiated in the j ustice court for Dallam Coun ty, and assi gned
cause number 4971, was not the same cas e as that from which arose our M arch 14, 1995 decision. Third, the March 14 , 1995 opinion w as not our las t involv ing the dis pute between Martin Stafford, as truste e of A.M. & J. Trust, and Edd ie Stafford, as inde pendent administrator

of his father’s es tate. We i ssued another on October 28, 1 998, in cause number 07-97-0494-CV and affirmed the decis ion of the trial cour t. The latter had held that the property

allegedly

transferred to Martin S tafford, as trustee, reverted to Alex Stafford
or his estate. Furthermore, the Texas Supreme Court d enied Stafford’s req uest to rev iew our decision. Consequentl y, the holdi ng in our M arch 14 th opinion, and upon w hich Alex Ray heavily relies, was effectively superceded; it constituted no fo undation for his argument. Frivolous Appeal Fina lly, Eddie moved, in hisappe lle e’sbri ef, for sanctions ag ainst Alex Ray for the filing of a friv

olous appeal. We grant the moti on. Rule 45 of the Texas Ru les of Appellate P rocedu re auth orizes us to sanction an appellant

if we determine that the app eal was fr ivo lous. T EX
. R. A PP
. P. 45. Whether to5

do so, however, lies w ithin our di scretion. Rios v. Northwestern Steel & W ir e Co. , 974 S.W.2d 932, 936 (Tex. App.–Hous t on [14 th Dist.] 1998, no pet.). In ex ercising that discretion, we 1) may

not consider any matter tha t does not appear in the record, briefs,
or other papers fil ed in the court of appeals, T EX
. R. A PP
. P. 45, 2) must act with pr udence, caution, and careful deli beration, Rios v. North western Steel & Wir e Co. , 974 S.W.2d at 936, and 3)view

the re cord fr

om the ad voca te’s s tandpoi nt to de termi ne wheth er there
were reasonable grounds to b elieve that the trial court’s judg ment was rev ersible. Safeway Managing

Gen. Agency v. Cooper , 952 S.W.2d 861, 870 (Tex. App.–Amaril lo 1997, no writ). Moreover, pertinent indi cia to consi der include, among other thi ngs, whe ther 1) appellant

was attempting torelitig ate an issue pr eviously resolved , Njuku v. M

iddleton , 20 S.W.3 d 1 76, 178 (Tex. A pp.–Dallas 2000, pet denied), 2) appellant prov ided us an incomplete record , Tate v. E.I. du Pont de Nem ours & Co. , 954 S.W .2d 8 72, 8 75 (T ex. App.–Houston [14 th Dist.] 1997, no pet.), 3) app ellant failed to respond to th e request for sanctions, America n Paging of Texas , Inc. v. El

Paso Paging, Inc. , 9 S.W.3d at 242, and 4) appellant filed a n inadequate br ief. Tate v. E.I. du Pont de Nemours & Co. , 954 S.W.2d at 875. Hav ing perused the record w ith these indi cia in mind, w e note the follow ing. First, al l but the first

issue proffered by

Alex Ray

had been resolved several years earlier by our opi nion in cause nu mber 07-9 7-04 94-C V. Aga in, in that case , we affirmed the trial cour

t’s awar d of the realty

in questi on to Eddie, asrepresentati ve of the estateof Alex Stafford. Moreover, Alex Ray ne ither mentioned that deci sion in his brief nor attempted to explain w hy it did not co ntrol the outco me of the forcible entr y and detainer procee ding. This cannot be because he was unaware of it sincethe opinion w as received into evidence below, according to the clerk’s record.6

Second, an incomplete r ecord wasprovided to us by Al ex Ray , as we note d when addressing issue one. W ithout it, we were unable to assess thelegitimac y of that iss ue. Third, his brief was also inadeq uate, as we also addressed when respo nding to the first issue . No au thor ity w as cite d to support hi s contention that he was deni ed due p rocess. And, while he did mention our M arch 14, 1995 opi nion, he negle cted to acknowle dge that our subseq uent opi nion i n that same case v itiated any notion that the estate of Alex Stafford did not ow n the property

. Fourth, though the req uest for sanction s was in cluded in Eddie ’s app ellate bri ef, Alex Ray did n ot respond to i t. We have nothing from him ex plaining w hy he believ ed he had a reasonable c hance of rever sing the trial court’ s judgment. Given the foregoing circumstances, we conc lude that the appeal was frivolous. Thus, we assess $500 as reasonable damag es recover able by Eddi e for

having to respond to the baseless matter. Acco rdin gly, we affirm the judgment of the trial c ourt. We further order t hat Alex Ray Stafford immediately

pay Eddie Stafford, as the independent administrator of the estate of Alex Stafford, the sum of $500.
Brian Quinn Justice