Opinion
No. 04-19-00823-CV
07-30-2020
John (Jack) PALAU, Appellant v. ACT INVESTMENTS, INC.; Capacity Builders, Inc.; and Deborah Montgomery, Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 19-144
Honorable Kirsten Cohoon, Judge Presiding
ORDER
After this court granted Appellant's first motion for extension of time to file the brief and then extended the due date for all pending briefs by an en banc order, Appellant's brief was due on June 30, 2020. On the extended due date, Appellant filed a second motion for extension of time to file the brief until July 13, 2020. Appellant filed his brief on July 17, 2020.
Appellant's motion is GRANTED. Appellant's pro se brief is deemed timely filed. See TEX. R. APP. P. 38.6(d).
However, Appellant's brief does not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. Specifically, the brief does not include the following:
• Table of Contents,See id. R. 9.4, 9.5, 38.1. The brief has these additional defects.
• Index of Authorities,
• Statement of Facts (that complies with the Rules),
• Argument (that complies with the Rules), or
• an Appendix (that complies with the Rules).
• None of the three issues include citations to the appellate record and each appears to rely on facts from outside the appellate record. Contra id. R. 38.1(i) ("The brief must
contain . . . appropriate citations . . . to the record."); Greystar, LLC v. Adams, 426 S.W.3d 861, 865 (Tex. App.—Dallas 2014, no pet.) ("[A]n appellate court may not consider matters outside the record, which includes documents attached to a brief as an exhibit or an appendix that were not before the trial court.").In its current form, Appellant's brief does not present anything for appellate review.
• Issue 1 cites just two potentially relevant authorities; issues 2 and 3 cite only one. None of the issues provide substantive legal analysis of the legal issues. Contra TEX. R. APP. P. 38.1(i); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ("Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.").
• The brief does not recite the standard of review. Contra TEX. R. APP. P. 38.1(i) (requiring "appropriate citations to authorities").
This court may order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38. See id. R. 38.9(a). We conclude that the defects described above constitute flagrant violations of Rule 38.
Therefore, we STRIKE Appellant's brief and ORDER Appellant to file an amended brief within TEN DAYS of the date of this order. The amended brief must correct all the violations listed above and fully comply with the applicable rules. See, e.g., id. R. 9.4, 9.5, 38.1. If the amended brief does not comply with this order, we "may strike the brief, prohibit [Appellant] from filing another, and proceed as if [Appellant] had failed to file a brief." See id. R. 38.9(a); see also id. R. 38.8(a) (authorizing this court to dismiss an appeal if an appellant fails to timely file a brief).
If Appellant timely files a brief that complies with this order, Appellees' brief will be due thirty days after Appellant's brief is filed. See TEX. R. APP. P. 38.6(b).
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 30th day of July, 2020.
/s/_________
Michael A. Cruz,
Clerk of Court