# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- 00092

- CV Gabriel RODRIGUEZ Sr., Individually, In All His Capacities, and In All His Common and Assumed Names; Gabriel Rodriguez Jr., In All His Capacities, and In All His Common and Assumed Names, and In His Capacity As Attorney in Fact for Gabriel Rodriguez Sr., Appellants

v. Virginia RODRIGUEZ , Imelda Garza Saenz, Maria Lilia Henkel, Israel Guerra, Mario Corona, Blanca Corona Garza, Homero Corona, Rosie Ownsby, Delia Rodriguez, Rudy Rodriguez, Estate of Filiberto Garza, and Josie (Fields) Rodriguez, Appellees From the 229th J udicial District Court , Starr County, Texas Trial Court No. DC

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- 282 Honorable Baldemar Garza , Judge Presiding Opinion by: Lori I. Valenzuela , Justice Sitting: Beth Watkins , Justice Liza A. Rodriguez , Justice Lori I. Valenzuela, Justice Delivered and Filed: November 29, 2023 AFFIRMED The underlying dispute o v er the same nine tracts of land ( the “property”) has lasted almost thirty

- eight years and spawned four prior appeals to this court. 1 In one of the many lawsuits , th e

1 This is the f ifth time these parties have been before us regarding the same nine tracts of land. See Rodriguez v. Hilcorp Energy Co. , No. 04

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- 00615

- CV, 2022 WL 17173385 (Tex. App.

— San Antonio Nov. 23, 2022, pet. denied) mem. op.) ; Rodriguez v. Garza , No. 04

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- 00139

- CV, 2007 WL 2116411 (Tex. App.

— San Antonio July 25, 2007, pet. denied) ( mem. op. ); Garza v. Rodriguez , 87 S.W.3d 628 (Tex. App.

— San Antonio 2002, pet. denied); Garza v. Rodriguez , 18 S.W.3d 694 (Tex. App.

— San Antonio 2000, no pet.).04

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- trial court rendered summary judgment in favor of appellees and decreed appellees’ family w ere the true owners of the property. On appeal, this court affirmed the trial court’s summary judgment. Rodriguez v. Garza , No. 04

- 06

- 00139

- CV, 2007 WL 2116411 , *6 (Tex. App.

— San Antonio July 25, 2007, pet. denied) ( mem. op. )

. In the suit underlying this appeal , Hilcorp Energy Company interpleaded unpaid royalties and royalty payments attributable to ownership in the property that it had been with holding

. Appellees filed an answer in which they alleged they were the true owners of the property and they were entitled to the funds interpleaded by Hilcorp. Appellees later moved for summary judgment, which the trial court granted. I n its summary judgment order, the trial
co urt decreed, among other things, that appellees were the “true, sole, and lawful owners” of the property and that appellants and their family members “do not own any part of this real property.” The judgment also enjoined appellants from taking certain ac tion with regard to the property. Gabriel Rodriguez, Sr. and Gabriel Rodriguez, Jr. appealed. 2 We affirm. DISCUSSION In their motion for summary judgment, appellees asserted res judicata barred every claim appellants litigated or could have litigated in the prior lawsuits. Appellees also asserted there was no evidence appell ants have any ownership interest in the proper ty because any potential property rights and claims by appellants were eliminated by various prior court decisions and deeds. The clerk’s record on appeal does n o t contain a copy of any summary judgment response filed by appellants. The only appellant to file an appellate brief was Gabriel Rodriguez, Sr. (hereinafter, “Rodriguez”). The issue s on appeal are that an attorney associated with appellees committed fraud, the 2005 and 2006 probate court rulings regarding the property amount to fraud and are voi d, the

2 Appellants’ pro se notice of appeal identifies Paul Celestine, also pro se, as an appellant. Nothing in the record on appeal indicates Celestine was a party to the underlying litigation or otherwise identifies his interest in this case

. Therefore, we do not consider the pro se brief he filed

.04

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- 2007 and 2009 opinions of this court are void, and “[t]he record shows that there has never been an interest of any kind [because Rodriguez] owns the land and all the people that [the attorney] represents are not heirs but just actors in a play.” R odriguez’s brief does not contain a single citation to the record and he cites to irrelevant caselaw. We review summary judgments de novo. Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013). “ A party moving for traditional summary judgment mus t prove that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. ” Wal

- Mart Stores, Inc. v. Xerox State & Local Sols., Inc. , 663 S.W.3d 569, 576 (Tex. 2023) ; T EX . R. C IV . P. 166a (c)

.

“ In comparison, a properly filed no

- evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion. ” Id.

“ If the nonmovant brings forth more than a scintilla of probative evi dence to raise a genuine issue of material fact, summary judgment is improper. ” Id. A genuine issue of material fact has been raised if reasonable and fair

- minded jurors could differ in their conclusions considering all the summary judgment evidence. Se e Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). In deciding whether a genuine issue precludes summary judgment, we must treat all evidence favorable to the nonmovant as true, indulge every reasonable inference, and res olve all doubts in its favor. Id. at 757
. If a party moves for summary judgment on both traditional and no

- evidence grounds, as appellees did here, we first consider the no

- evidence motion. Merriman , 407 S.W.3d at 248
. If the nonmovant fails to overcome its no

- evidence burden on any claim, we do not address the traditional motion to the extent it addresses the same claim. Id. For a no
- evidence motion to be sufficient under Texas Rule of Civil Procedure 166a(i), the
mo tion must specifically state the element or the elements of the nonmovant ’ s claims for which04

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- there is no evidence. Cmty. Health Sys. Pro

. Servs

. Corp. v. Hansen , 525 S.W.3d 671, 695 (Tex. 2017) ; T EX . R. C IV . P. 166a(i). “ If a nonmovant wishes to assert t hat, based on the evidence in the record, a fact issue exists to defeat a no

- evidence motion for summary judgment, the nonmovant must timely file a response to the motion raising this issue before the trial court. ” Imkie v. Methodist Hosp. , 326 S.W.3d 339 , 343 (Tex. App.

— Houston [1st Dist.] 2010, no pet.). “Absent a timely response, a trial court must grant a no

- evidence motion for summary judgment that meets the requirements of Rule 166a(i).” I d. Generally, the failure to respond to a no - evidence summary judgment motion is “fatal to the nonmovant ’ s ability to assert on appeal that the trial court erred in granting the motion.” Patidar v. Bank of Am., N.A. , 442 S.W.3d 789, 793 (Tex. App.

— Houston [14th Dist.] 2014, no pet.). Here, appe llees’ no - evidence motion specifically identified the element relevant to any claim appellants have to the property or to the interpleaded funds

— the lack of an ownership interest in the property

. The motion was, therefore, sufficient to shift the burden t o appellants. The clerk’s record in this appeal does not contain a response, if any, by appellants to appellees’ motion for summary judgment. Therefore, we do not know what arguments appellant s made, and what evidence, if any, appellant s submitted to dem onstrate that appellees were not entitled to summary judgment. Appellants’ failure to include their summary judgment response , if one was filed, requires us to presume th at pleading would support the trial court ’ s ruling. DeSantis v. Wackenhut Corp. , 793 S.W.2d 670, 689 (Tex. 1990) (affirming summary judgment when affidavit filed in support of same was not included in appellate record); Sung Sik Choi v. Juggernaut Transp

. , Inc. , No. 05

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- 01386

- CV, 2017 WL 2729907, at *2 (Tex. App.

— Dallas June 26, 2017, no pet.) (mem. op.) (presuming omitted response to no

- evidence motion for summary judgment supported trial court ’ s judgment where appellants appealed from the trial court ’ s order granting a
no - evidence motion for summary judgment but did not include their response to the motion for04

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- summary judgment in the clerk ’ s record); Habanero, Inc. v. Schweitzer , No. 14

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- 00339

- CV, 2012 WL 19671, at *1 (Tex. App.

— Houston [14th Dist.] Jan. 5, 2012, no pet.) (mem. op.) (presuming summary judgment motions supported trial court ’ s judgment where appellant failed to include his response to the summary judgment motions in the clerk ’ s record). Because appell ee s’ no - evidence motion met the requirements of Rule 166a(i) and appell ants did not file a response, the trial cour t was required to grant a no - evidence summary judgment in favor of appell ee s . See Imkie , 326 S.W.3d at 343; T EX . R. C IV . P . 166a(i) (“The court must grant the [no

- evidence] motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”). A ppellants failed to produce any evidence under their burden ; therefore , we need not a nalyze whether appellees’ s ummary judgment evidence satisfied the traditional summary judgment standard

. We therefore hold the trial court properly rendered summary judgment in favor of appellees. As for that portion of the trial court’s order that enjoined appellants from taking certain actions and that portion enforcing prior judgments, we again note the in adequacy of Rodriguez’s brief

. An appellant ’ s brief must concisely state all issues presented for review and must contain a clear, concise argument for the contentions made, with appropriate citations to authorities and to the record. See T EX . R. A PP . P
. 38.1 (i). W e hold Rodriguez’s brief is inadequate as to any complaint regarding these portions of the judgment ; therefore , presenting nothing for our review

. CONCLUSION We affirm the trial court’s Final Judgment , Permanent Injunction, Order Enforcing Prior Judgments, and Severance. Lori I. Valenzuela, Justice