Opinion
No. 05-15-00620-CV
04-12-2017
CECILIA BERTAUD, Appellant v. WOLNER INDUSTRIES, Appellee
On Appeal from the County Court at Law No. 5 Dallas County, Texas
Trial Court Cause No. CC-15-02007-E
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Schenck
Cecilia Bertaud ("Bertaud"), a pro se litigant, files this appeal complaining of the trial court's final judgment in a forcible detainer action awarding possession of certain real property to Wolner Industries, Inc. ("Wolner"). Bertaud failed to comply with the briefing requirements of our appellate rules after receiving notice of the deficiency and an opportunity to cure. Thus, she waived her complaint. Because all dispositive issues are settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court's judgment.
BACKGROUND
On March 23, 2015, Wolner filed a Petition for Eviction in the Justice Court seeking to evict Bertaud from occupying a condominium unit following a foreclosure sale. On April 20, 2015, the Justice Court entered an order awarding possession of the premises at issue to Wolner. Bertaud appealed the Justice Court's order to the County Court at Law, Dallas County. On April 30, 2015, the County Court at Law affirmed the Justice Court's order and this appeal followed.
On November 25, 2015, Bertaud filed both a brief and a motion for extension of time to retain a lawyer. On December 14, 2015, this Court sent written notice to Bertaud that her brief did not satisfy the minimum requirements of the Texas Rules of Appellate Procedure. That notice advised Bertaud that her brief was deficient as follows:
(1) it does not contain a complete list of all parties to the trial court's judgment;We initially gave Bertaud ten days to correct the specified deficiencies. On December 17, 2015, this Court granted Bertaud's motion for an extension of time to retain a lawyer and extended the time to file an amended brief correcting the deficiencies to January 28, 2016. On February 8, 2016, both the December 14, 2015 notice and the December 17, 2015 order were returned to this Court by the post office. On February 10, 2016, Bertaud supplied the Court with a new address. On February 24, 2016, we ordered Bertaud to notify this Court by March 9, 2016, of the name, State Bar number, address, phone number, and email address of new counsel, and ordered her to amend her brief correcting the deficiencies noted in the Court's December 14, 2015 letter by March 21, 2016. We cautioned Bertaud that failure to file an amended brief by March 21, 2016, would result in the appeal being submitted on the brief she filed on November 25, 2015. Bertaud failed to file an amended brief as ordered and the appeal was submitted on Bertaud's deficient brief.
(2) it does not contain an index of authorities with page references;
(3) it does not contain a concise statement of the case, the course of proceedings, and the trial court's disposition of the case supported by record references;
(4) it does not concisely state all issues or points presented for review;
(5) it does not contain a concise statement of the facts supported by record references;
(6) it does not contain a succinct, clear, and accurate statement of the arguments made in the body of the brief;
(7) the argument does not contain appropriate citations to authorities;
(8) the argument does not contain appropriate citations to the record;
(9) it does not contain a short conclusion that clearly states the nature of relief sought;
(10) the text of the brief is not double spaced;
(11) the text of the brief is not the proper size;
(12) it does not contain a proper certificate of service; and
(13) there are omission from the appendix.
DISCUSSION
On appeal, as in trial, a pro se appellant must properly present her case. See Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied). Although we liberally construe pro se briefs, litigants who represent themselves are required to comply with applicable rules and are held to the same standards as litigants represented by counsel. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.—Dallas 2008, no pet.). To hold otherwise would give pro se litigants an unfair advantage over litigants with an attorney. In re N.E.B., 251 S.W.3d at 212.
The Texas Rules of Appellate Procedure control the required contents and organization of an appellant's brief. See TEX. R. APP. P. 38.1; ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Under those rules, an appellant's brief must concisely state all issues or points presented for review and, among other things, "contain 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). Briefing rules are to be construed liberally in an effort to ascertain the real basis of appeal. Manney & Co. v. Texas Reserve Life Ins. Co., 407 S.W.2d 345, 349 (Tex. App.—Dallas 1966, no writ). Briefs are meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case. TEX. R. APP. P. 38.9. Substantial compliance with the briefing rules is sufficient. Id. If, after reviewing the appellant's brief, we determine there is a formal defect in the appellant's briefing because the appellant has flagrantly failed to acquaint the court with the issues in the case and present argument that will enable us to decide the case, we may require a brief to be amended. Id. We may make any order necessary for a satisfactory submission of the case. Id. When an appellant submits a brief from which we cannot identify the legal arguments and issues, the brief must be corrected to permit a satisfactory submission of the case before we resolve the appeal. Where the briefing defect has been noted, and the party has been given the opportunity to cure but fails to do so, we may resolve the case as necessary. See TEX. R. APP. P. 44.3.
Despite having been given an opportunity to correct the deficiencies in her brief, appellant failed to do so. Therefore, this case was submitted on Bertaud's November 25, 2015 brief consisting of four pages. It is comprised of a table of contents, an appendix with a list of items to be filed by an unknown attorney, and a conclusion and prayer asking that Bertaud's case be heard and justice prevail. Bertaud's brief does not contain a statement of the case and does not include a concise statement of the facts supported by a record or record references. See TEX. R. APP. P. 38.1(d), and (g). Instead, in the table of contents, under statement of facts, Bertaud provides a vague, declaratory statement of an illegal foreclosure, and a confusing reference to homeowner association by-laws and declarations. There are no issues presented. See id. 38.1(f). Instead, in the table of contents, under argument, Bertaud states:
Failed to Include Homeowners Association John Bealle aka John Bealle Business Service. Price Fixing Scheme, Attorneys for the Appellees [sic] made other contracts, [and] Federico Magdonad a nonregistered agent is permitted to sell condo for Wolner.
Bertaud has the burden to present and discuss her assertions of error in compliance with the appellate briefing rules. See TEX. R. APP. P. 38.1. Bertaud's brief provides no discussion or legal analysis of these arguments and contains no citations to legal authorities or the record. See TEX. R. APP. P. 38.1(i). We may not speculate as to the substance of the specific issues Bertaud may be trying to raise with these arguments and may not make a party's argument for him. Strange, 126 S.W.3d at 678. We have no duty or right to perform an independent review of the record and the applicable law to determine if the trial court erred. Id. And there is no court reporter's record in this case because Bertaud failed to secure the record despite opportunities to do so.
We are reluctant to decide a case on the basis of briefing waiver, as the rules express a clear preference for resolution on the merits where possible. But where, as here, the party has been notified of procedural and substantive deficiencies in a brief and fails to correct them so as to remit a satisfactory submission of the case, we are presented with only the presumption of correctness of the underlying judgment.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 150620F.P05
JUDGMENT
On Appeal from the County Court at Law No. 5, Dallas County, Texas
Trial Court Cause No. CC-15-02007-E.
Opinion delivered by Justice Schenck. Justices Bridges and Evans participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee WOLNER INDUSTRIES recover its costs of this appeal from appellant CECILIA BERTAUD. Judgment entered this 12th day of April, 2017.