Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00531-CV

Roger L. LOTT,

Appellant

v.

FIRST BANK,

Appellee

From the County Court at Law No. 10, Bexar County, Texas

Trial Court No. 372518

Honorable David J. Rodriguez, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Marialyn Barnard, Justice

Delivered and Filed: October 1, 2014

AFFIRMED

This is an appeal from the trial court’s summary judgment in favor of appellee First Bank. 

On appeal, appellant Roger L. Lott contends the affidavit in support of First Bank’s motion was 

insufficient to support the summary judgment because it: (1) was not based on personal knowledge, 

(2) was vague and unclear, and (3) was in relation to an account that was never provided as 

requested in discovery. We affirm the trial court’s judgment. 
04-13-00531-CV

BACKGROUND

A detailed rendition of the facts is unnecessary for the disposition of this appeal. 

Accordingly, we provide facts merely for context. 

According to First Bank’s petition and motion for summary judgment, Lott and First Bank 

entered into a credit agreement whereby First Bank provided credit to Lott in return for Lott’s 

promise to repay the credit with interest. First Bank brought suit when Lott allegedly defaulted 

and failed to pay the amounts due and owing. 

Ultimately, First Bank filed a motion for summary judgment. The trial court granted the 

motion. Thereafter, Lott perfected this appeal. 

ANALYSIS

As noted above, Lott has raised three appellate issues. In each issue, Lott challenges the 

affidavit of the custodian of records submitted by First Bank in support of its motion for summary 

judgment. 

Inadequate Briefing

We must begin our analysis by addressing the briefing deficiencies in Lott’s brief. On 

January 8, 2014, Lott filed a pro se appellant’s brief. Upon review of the brief, this court noted 

the brief failed to comply with Rule 38.1 of the Texas Rules of Appellate Procedure in numerous 

respects. We specifically noted that:

(1) the brief does not contain a table of contents, TEX. R. APP. P. 38.1(b);

(2) the brief does not contain an index of authorities, TEX. R. APP. P. 38.1(c);

(3) the brief does not include a statement of the nature of the case and the course of 

the proceedings, supported by references to the record, TEX. R. APP. P. 38.1(d);

(4) the brief does not state concisely all issues or points presented for review, TEX.

R. APP. P. 38.1(f);

(5) the brief does not contain a statement of facts supported by references to the 

record, TEX. R. APP. P. 38.1(g);

(6) the brief does not contain a summary of the argument, TEX. R. APP. P. 38.1(h);

(7) the brief does not include a clear and concise argument for the contentions made 

with appropriate citations to authorities and to the record, TEX. R. APP. P. 38.1(i);

- 2 -
04-13-00531-CV

(8) the brief does not include an appendix containing the items specified in Rule 

38.1(k), TEX. R. APP. P. 38.1(k); and

(9) the brief does not contain a certificate of service, as required by Rule 9.5,

acknowledging that appellant served a copy of the document on all parties to the

proceeding. TEX. R. APP. P. 9.5(a), (d), (e).

We advised Lott that as a pro se litigant, he was required to comply with all applicable 

procedural rules and would be held to the same standards as a licensed attorney. See Paselk v. 

Rabun, 293 S.W.3d 600, 611 (Tex. App.—Texarkana 2009, pet. denied); Sweed v. City of El Paso

Police Dept., 346 S.W.3d 679, 680 (Tex. App.—El Paso 2009, pet. denied). We determined the 

pro se brief constituted a flagrant violation of Rule 38.1, and therefore ordered Lott to file a 

redrawn brief, correcting the noted deficiencies. 

In response, Lott did not file a redrawn brief. Rather, Lott hired an attorney and the attorney 

entered an appearance and moved for an extension of time to file the brief. We granted the 

requested extension, but advised Lott by order that the court would not entertain any additional 

motions for extension of time — by the date of this order, Lott’s brief was more than ninety days 

overdue. We also advised Lott that any brief filed by counsel would need to correct the 

deficiencies identified in our previous order. 

On February 11, 2014, Lott filed his redrawn brief. Despite our prior orders, the brief failed 

to correct a majority of the deficiencies identified by this court in our original order. Specifically, 

the six-page brief filed by counsel on behalf of Lott does not: (1) contain an index of authorities, 

TEX. R. APP. P. 38.1(c); (2) include a statement of the nature of the case and the course of the

proceedings, supported by references to the record, TEX.R. APP. P. 38.1(d); (3) contain a statement 

of facts supported by references to the record, TEX. R. APP. P. 38.1(g); (4) include a clear and 

concise argument for the contentions made with appropriate citations to authorities and to the 

record, TEX. R. APP. P. 38.1(i); or (5) contain a certificate of service, as required by Rule 9.5,

acknowledging that appellant served a copy of the document on all parties to the proceeding. TEX.

- 3 -
04-13-00531-CV

R. APP. P. 9.5(a), (d), (e). We note specifically, with regard to citation to authority and the record 

that the brief does not include a single citation to the clerk’s record and, despite raising three 

disparate issues, the brief includes citation only to Texas Rules of Civil Procedure 166a(f), 

192.3(b), and 193.6(a). Lott does not cite a single case — not even for the proper standard of 

review. 

Even if we were to ignore the numerous other deficiencies in the brief and Lott’s failure to 

comply with two of this court’s orders, it is well-settled that an appellate brief must contain a clear 

and concise argument for the contentions made, with appropriate citations to authorities and to 

the record, or the issue may be deemed waived. See, e.g., Keyes Helium Co. v. Regency Gas 

Servs., L.P., 393 S.W.3d 858, 861–62 (Tex. App.—Dallas 2012, no pet.) (holding failure to cite to 

relevant portions of record waives appellate review); Niera v. Frost Nat’l Bank, No. 04–09–

00224–CV, 2010 WL 816191, at *3 (Tex. App.—San Antonio Mar. 10, 2010, pet. denied) (mem. 

op.) (holding failure to provide appropriate records citations or substantive analysis waived 

appellate issue); WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. 

App.—Houston [14th Dist.] 2005, pet. denied) (providing that failure to offer argument, citations 

to record, or authority waives appellate review); Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 

S.W.3d 459, 489 (Tex. App.—Fort Worth 2004, no pet.) (holding appellant waived alleged jury 

charge error by failing to include proper citation to record). More specifically, this court is not 

required to search the appellate record, with no guidance from the briefing party, to determine if 

the record supports the party’s argument. Keyes Helium Co., 393 S.W.3d at 861–62; Rubsamen v. 

Wackman, 322 S.W.3d 745, 746 (Tex. App.—El Paso 2010, no pet.); Citizens Nat’l Bank, 142 

S.W.3d at 489.

Here, despite two specific warnings from this court about the lack of citation to the record 

and appropriate authorities, Lott failed to include even a single citation to the appellate record and 

- 4 -
04-13-00531-CV

scant and inadequate citation to appropriate authorities. The argument contained in the brief is 

conclusory. Accordingly, we hold Lott’s complaints are inadequately briefed, and therefore, 

waived.

Moreover, even if we were to consider Lott’s arguments, we would find he has waived two 

of those arguments by failing to preserve them below, and the third is without merit. In his first 

issue, he appears to suggest the affidavit from the custodian of records supporting First Bank’s 

motion for summary judgment is insufficient because it is not based on personal knowledge. More 

specifically, he appears to take issue with the phrasing in the affidavit, i.e., “best of my personal 

knowledge” as opposed to “personal knowledge.” 

This court has followed the supreme court’s admonition in Grand Prairie Indep. Sch. Dist. 

v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990), that a failure to object to the form of an affidavit 

on the ground that it does not show personal knowledge results in waiver of the complaint. See, 

e.g., In re Evolution Petroleum Co., 359 S.W.3d 710, 713 n.2 (Tex. App.—San Antonio 2011, 

orig. proceeding); Celadon Trucking Servs., Inc. v. Lugo’s Sec. Agency, No. 04-05-00018-CV, 

2005 WL 2401886, at *3 n.3 (Tex. App.—San Antonio Sept. 28, 2005, no pet.) (mem. op.); Garcia 

v. John Hancock Variable Life Ins., 859 S.W.2d 427, 433 (Tex. App.—San Antonio 1993, writ 

denied). The record does not establish Lott filed any objections to the affidavit submitted by First 

Bank in support of its motion for summary judgment. Accordingly, Lott has not preserved this 

issue for our review. 

In his second issue, Lott contends summary judgment was improper because the 

custodian’s affidavit relied upon by First Bank is “vague and unclear.” Lott points to the following 

statement in the affidavit as “vague and unclear”: “I further testify that the claim and cause of 

action for the aforesaid against: Roger L. Lott in the sum of $4672.31.” Although he states the 

affidavit is “vague and unclear,” he then argues the affidavit was inadmissible under Rule 166a(f) 

- 5 -
04-13-00531-CV

because it did not “set forth facts as would be admissible in evidence.” See TEX. R. CIV. P. 166a(f). 

We disagree. 

The affidavit from First Bank’s custodian of records, though not a model of clarity, 

unquestionably states First Bank’s claim is for $4,672.31 based on the account records attached to 

the motion for summary judgment. We find the custodian’s testimony to be clear as to the amount 

of debt claimed by First Bank, and disagree with Lott that the affidavit, when considered in context, 

is either vague or unclear. Moreover, the amount of the debt is a fact that would be admissible in 

evidence. Accordingly, we overrule this issue. 

Finally, in his third issue, Lott complains the affidavit is somehow defective because it 

relates to a contract he allegedly entered into with First Bank, but First Bank failed to provide a 

copy of said contract during discovery as requested. Clearly, this issue is based on alleged pretrial 

discovery misconduct in the trial court. However, we find no formal discovery request for the 

alleged contract in the record, no motion to compel production of the alleged contract, and no 

ruling on any such discovery request. Accordingly, Lott has not preserved this issue for our 

review. See TEX. R. APP. P. 33.1; cf. Meyer v. Cathey, 167 S.W.3d 327, 333 (Tex. 2005) (holding 

failure to obtain pretrial ruling on discovery dispute that exists before commencement of trial 

constitutes waiver of any claim for sanctions based on such conduct); Remington Arms Co., Inc.

v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (same). 

CONCLUSION

Based on the foregoing, we first hold Lott has waived any appellate complaint by failing 

to comply with the briefing rules set out in Rule 38.1 of the Texas Rules of Appellate Procedure. 

Second, even if not waived due to inadequate briefing, issues one and three are waived for failure 

to preserve the complaint by objection in the trial court. As for the second issue, we find the 

- 6 -
04-13-00531-CV

affidavit is neither vague nor unclear and contains facts that would be admissible in evidence. 

Accordingly, we overrule Lott’s issues and affirm the trial court’s judgment. 

Marialyn Barnard, Justice

- 7 -