Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-14-00687-CV

Rudy NEIRA,

Appellant

v.

Sheryl SCULLY, In Her Official Capacity as the City Manager of the City of San Antonio, on 

Behalf of the San Antonio Planning Commission,

Appellee

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 2014-CI-05034

Honorable John D. Gabriel Jr., Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Jason Pulliam, Justice

Delivered and Filed: July 22, 2015

AFFIRMED

This is an appeal from a trial court’s order granting summary judgment in favor of appellee 

Sheryl Scully, In Her Official Capacity as the City Manager of the City of San Antonio, on Behalf 

of the San Antonio Planning Commission. On appeal, appellant Rudy Neira contends the trial 

court erred in granting summary judgment in favor of Scully because there is a “real and substantial 

controversy that can be settled by declaratory judgment.” We affirm the trial court’s judgment. 
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BACKGROUND

An individual named Richard Hovenden purchased a one-acre lot in San Antonio.1

 After 

the purchase, Mr. Hovenden filed an application with the City of San Antonio’s Planning 

Commission (“the Commission”), seeking to replat the one-acre lot into three individual lots.2

 A 

hearing was scheduled on Mr. Hovenden’s application, and Neira, who owns a portion of a platted 

lot contiguous with the property in question, received notice of Mr. Hovenden’s application and 

the date of the hearing. Neira admitted he did not attend the hearing. After the hearing, the 

Commission unanimously approved Mr. Hovenden’s application. 

Neira believed the division of the one acre lot “would divert storm water and cause damage 

to Mr. Neira and to neighbors.” Neira also believed the Commission’s decision to replat the oneacre lot was invalid. Neira filed a petition for declaratory judgment pursuant to Chapter 37 of the 

Texas Civil Practice and Remedies Code, asking the trial court to declare that the replat invalid 

because: (1) it violated the Texas Local Government Code; (2) it violated the Texas Property Code; 

(3) it violated particular deed restrictions; and (4) the City acted in an unreasonable and arbitrary 

manner.3

 Neira’s claims of invalidity appear to be based on his interpretation of section 35-

515(h)(1) of the City of San Antonio’s Unified Development Code, which governs the 

authorization of flag lots. See San Antonio, Tex., Unified Development Code § 35.515(h)(1) 

(2006). In response, Scully filed an answer and thereafter, a motion for summary judgment. Neira 

filed a response to Scully’s motion for summary judgment and requested summary judgment on 

his own behalf. 

 1 Technically, the lot was just over one-acre, but that is irrelevant to the substance of the matter. 2 According to Scully’s summary judgment evidence, the lot in question was originally three lots in 1940. In 1959, 

the lot was replatted into a single, one-acre lot. 3 In his summary judgment response, Neira specifically stated he was withdrawing (2) and (3) from consideration by 

the court. 
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After a hearing, the trial court granted Scully’s motion for summary judgment and denied 

the motion filed by Neira. Neira then perfected this appeal. 

ANALYSIS

Before addressing the merits, we must first determine whether Neira has presented 

anything for our review. It is well-settled that an appellant’s brief must contain clear and concise 

arguments with appropriate citations to authorities and the record. See, e.g., In re Estate of Aguilar, 

No. 04-13-00038-CV, 2014 WL 667516, at *8 (Tex. App.—San Antonio Feb. 19, 2014, pet. 

denied) (mem. op.); Keyes Helium Co. v. Regency Gas. Servs., L.P., 393 S.W.3d 858, 861–62 

(Tex. App.—Dallas 2012, no pet.); 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.); WorldPeace v. 

Comm’n for Lawyer Discipline, 183 S.W.3d 451, 460 (Tex. App.—Houston [14th Dist.] 2005, pet. 

denied); Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 489 (Tex. App.—Fort Worth 

2004, no pet.); see also TEX. R. APP. P. 38.1(i). As stated by the supreme court in 2012, “[t]he 

Texas Rules of Appellate Procedure require adequate briefing.” ERI Consulting Eng’rs, Inc. v. 

Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Moreover, we have no duty to properly brief the 

issues for the appellant, or to sift through the record in search of facts supporting a party’s position. 

Torres v. Garcia, No. 04–11–00822–CV, 2012 WL 3808593, at *4 (Tex. App.—San Antonio Aug. 

31, 2012, no pet.) (mem. op.); Rubsamen v. Wackman, 322 S.W.3d 745, 746 (Tex. App.—El Paso 

2010, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). In other 

words, it is the appellant’s burden “to discuss [his] assertions of error, and we have no duty—or 

even right—to perform an independent review of the record and applicable law to determine 

whether there was error.” Rubsamen, 322 S.W.3d at 746. The failure to cite applicable authority 

or provide substantive analysis waives an issue on appeal, as does the failure to provide citations 

to relevant portions of the appellate record. See, e.g., Keyes Helium Co., 393 S.W.3d 861–62 
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(holding that failure to cite to relevant portions of record waives appellate review); Huey, 200 

S.W.3d at 854 (holding that failure to cite applicable authority or provide substantive analysis 

waives issue on appeal); Niera, 2010 WL 816191, at *3 (holding that failure to provide appropriate 

citations or substantive analysis waived appellate issues); WorldPeace, 183 S.W.3d at 460 (holding 

that failure to offer argument, citations to record, or authority waives appellate review); Citizens 

Nat’l Bank, 142 S.W.3d at 489–90 (holding that appellant waived jury charge error by failing to 

include proper citation to record); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 

S.W.2d 279, 284 (Tex.1994) (holding appellate court may use its discretion to find issues waived 

due to inadequate briefing). 

We recognize Neira is pro se on appeal, i.e., he is representing himself. However, pro se 

litigants are generally held to the same standards as licensed attorneys and must comply with all 

applicable rules, including the rules governing appellate briefs. E.g., Serrano v. Pellicano Park, 

L.L.C., 441 S.W.3d 517, 520 (Tex. App.—El Paso 2014, pet. dism’d w.o.j.); Kindle v. United 

Servs. Auto. Ass’n, 357 S.W.3d 377, 380 (Tex. App.—Texarkana 2011, pet. denied); Decker v. 

Dunbar, 200 S.W.3d 807, 809 (Tex. App.—Texarkana 2006, pet. denied); Strange v. Cont’l Cas. 

Co., 126 S.W.3d 676, 677–78 (Tex. App.—Dallas 2004, pet. denied). As the supreme court stated 

in Mansfield State Bank v. Cohn:

There cannot be two sets of procedural rules, one for litigants with counsel and the 

other for litigants representing themselves. Litigants who represent themselves 

must comply with the applicable procedures rules, or else they would be given an 

unfair advantage over litigants represented by counsel. 

573 S.W.2d 181, 184–85 (Tex. 1978); see Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) 

(stating the pro se litigants are not exempt from rules of procedure and that “[h]aving two sets of 

rules—a strict set for attorneys and a lenient set for pro se parties—might encourage litigants to 

discard their valuable right to the advice and assistance of counsel). 
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Neira’s brief is deficient. First, his brief does not include a single citation to the appellate 

record. The record consists of a clerk’s record of more than three hundred pages. Although Neira 

refers to documents in the clerk’s record, he does not provide to this court with a citation to the 

place in the record where the documents can be found. As Neira himself points out, his own reply 

consists of six pages and a twenty-page attachment. 

Second, Neira includes in his brief a single citation to authority — Potter v. Clear Channel 

Outdoor, Inc., No. 01-07-00578-CV, 2009 WL 1886168 (Tex. App.—Houston [1st Dist.] July 2, 

2009, no pet.) (mem. op). Although the cited case involves a motion for summary judgment in a 

declaratory judgment action, this is where the similarity ends. The appeal brought by Neira 

concerns declarations relevant to the interpretation of a city ordinance as it relates to the replatting 

of real property. Potter, on the other hand, has nothing to do with replatting or city ordinances. 

Id. at *1. Rather, it concerns a declaration regarding the proper interpretation of ground leases for 

billboard use. Id. The only proposition for which Neira cites Potter is that in the event this court 

agrees with him, we should remand the matter for another hearing before the Commission. He 

does not cite any other authority. 

Finally, Neira wholly fails to present an actual substantive argument in his brief. Rather, 

he provides conclusory statements to the effect that he believes section 35-515(h)(1) of the Unified 

Development Code has a certain meaning, which renders Scully’s, i.e., the Commission’s, 

replatting decision erroneous, whereas Scully, i.e., the Commission, believes the same ordinance 

has another meaning, which renders the Commission’s decision correct. Neira provides no 

argument regarding the substance of the ordinance, no argument as to what his interpretation is as 

opposed to the Commission’s, or why his interpretation should prevail over that of the 

Commission. Neira simply contends that because his interpretation is different from that of the 
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Commission’s, summary judgment was improper. This alone does not constitute a proper legal 

argument. 

As reflected in the foregoing description, we hold the brief fails to meet the basic 

requirements of the briefing rules set out in Rule 38.1 of the Texas Rules of Appellate Procedure. 

See TEX. R. APP. P. 38.1. The brief fails to provide a single citation to the clerk’s record—which 

is over three hundred pages long, fails to provide any authority—other than a single citation to a 

case that involves interpretation of a ground lease, and further fails to provide an actual, 

appropriate legal argument for the relief sought. Because Neira has failed to provide any citations 

to the record, cite applicable authority, or provide substantive analysis for his contentions, we hold 

he has presented nothing for our review. See Huey, 200 S.W .3d at 854. 

Moreover, even if Neira had properly briefed this matter, we would nevertheless affirm the 

trial court’s summary judgment in favor of Scully. In her motion for summary judgment, Scully 

set out numerous grounds in support of her motion, and in its summary judgment order, the trial 

court did not specify upon which grounds the motion was granted. When a party moves for 

summary judgment on multiple grounds and the trial court’s summary judgment order does not 

specify the ground or grounds upon which judgment was granted, an appealing party must negate 

all possible grounds upon which summary judgment could have been rendered by either asserting 

a separate issue challenging each possible ground or asserting a Malooly point and providing 

argument upon each possible ground. Ramirez v. First Liberty Ins. Corp., 458 S.W.3d 568, 571–

72 (Tex. App.—El Paso 2014, no pet.); Woodhaven Partners, Ltd. v. Shamoun & Nourman, L.L.P., 

422 S.W.3d 821, 831 (Tex. App.—Dallas 2014, no pet.); Jarvis v. Rocanville Corp., 298 S.W.3d 

305, 313 (Tex. App.—Dallas 2009, pet. denied); see Malooly Bros., Inc. v. Napier, 461 S.W.2d 

119, 121 (Tex. 1970). If an appellant fails to challenge each possible ground upon which summary 
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judgment could have been granted, we must uphold the summary judgment. Ramirez, 458 S.W.3d 

at 571–72; Woodhaven Partners, Ltd., 422 S.W.3d at 831; Jarvis, 298 S.W.3d at 313. 

In her motion for summary judgment, Scully raises multiple grounds for summary 

judgment. However, Neira challenges only those grounds relating to the actual interpretation of 

the section 35-515(h)(1) of the Unified Development Code, ignoring Scully’s grounds relating to: 

(1) the contention that any declaration against Scully alone, as an ex officio member of the 

Commission, would be insufficient to resolve this matter; (2) Neira’s failure to join all persons 

who might be affected by the judgment; (3) Neira’s lack of standing; and (4) Neira’s failure to 

preserve a legal challenge to the Commission’s ruling. Even under the most liberal interpretation 

of Neira’s brief, we hold he has not raised issues challenging each ground upon which summary 

judgment could have been granted nor raised a Malooly point supported by argument on each 

specific ground. We must, therefore, uphold the summary judgment in favor of Scully. See

Ramirez, 458 S.W.3d at 571–72; Woodhaven Partners, Ltd., 422 S.W.3d at 831; Jarvis, 298 

S.W.3d at 313. 

CONCLUSION

Based on the foregoing analysis, we hold Neira has waived his appellate complaints due to 

inadequate briefing. Additionally, even if Neira has properly briefed his appeal, we would affirm 

the trial court’s summary judgment in favor of Scully because Neira failed to negate all possible 

grounds upon which summary judgment could have been granted. Accordingly, we affirm the 

summary judgment. 

Marialyn Barnard, Justice