Opinion
01-23-00556-CV
02-01-2024
Delvin Demby v. Goldman Sachs Bank USA
County Court at Law No. 2 of Harris County Trial court case No: 1182296
ORDER
Julie Countiss, Judge
Appellant Delvin Demby, acting pro se, has filed a notice of appeal. Appellant's brief was due on December 11, 2023. On January 17, 2024, the Clerk of this Court notified appellant that his appellant's brief was past due and directed him to file within ten days of the notice, "a motion requesting an extension of time along with [his] brief or a motion to extend time to file a brief." On January 23, 2024, appellant filed his "First Motion for Extension of Time to File Petition for Review," asking for an extension until February 17, 2024. We interpret appellant's motion to be a motion for extension to file his appellant's brief. Appellant's motion does not comply with the Texas Rules of Appellate Procedure because is not signed, does not contain a certificate of service, and does not contain a certificate of conference. See Tex. R. App. P. 9.5 (all documents must be served on all parties); 10.1(a)(5) (certificate of conference).
February 17, 2024 is a Saturday.
Accordingly, the motion for extension of time is denied.
With the motion, appellant filed what appears to be his appellant's brief. The brief does not comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1. Among other things, appellant's brief:
• Does not identify all parties to the trial court's judgment and their counsel;
• Does not contain a table of contents;
• Does not contain an index of authorities;
• Does not "state concisely the nature of the case," "the course of the proceedings, and the trial court's disposition of the case," "supported by record references";
• Does not "include a statement explaining why oral argument should or should not be permitted";
• Does not "state concisely and without argument the facts pertinent to the issues or points presented," "supported by record references";
• Does not "contain a succinct, clear, and accurate statement of the arguments made in the body of the brief";
• Does not "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"; and
• Does not include an appendix with the necessary contents.Tex. R. App. P. 38.1(a), (b), (c), (d), (e), (g), (h), (i), (k). Appellant's brief also does not comply with Texas Rule of Appellate Procedure 9.4 and 9.5. See Tex. R. App. P. 9.4; 9.5.
The appellate briefing requirements are mandatory. M&E Endeavors LLC v. Air Voice Wireless LLC, Nos. 01-18-00852-CV, 01-19-00180-CV, 2020 WL 5047902, at *7 (Tex. App.- Houston [1st Dist.] Aug. 17, 2020, no pet.) (mem. op.); see also Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.-Dallas 2010, no pet.) ("Only when we are provided with proper briefing may we discharge our responsibility to review the appeal and make a decision that disposes of the appeal one way or the other.").
Because appellant's brief does not comply with the Texas Rules of Appellate Procedure, we strike appellant's brief filed on January 23, 2024. We order appellant to file a corrected brief that complies with Texas Rules of Appellate Procedure. The deadline for filing the corrected brief is thirty days from the date of this order.
If appellant's corrected brief does not comply with the Texas Rules of Appellate Procedure, the Court may strike the corrected brief, prohibit appellant from filing another, proceed as if appellant has failed to file a brief, and dismiss the appeal. See Tex. R. App. P. 38.8(a)(1), 38.9(a), 42.3, 43.2(f); see, e.g., Archer v. Finlay, No. 13-21-00359-CV, 2022 WL 1415679, at *1 (Tex. App.-Corpus Christi-Edinburg May 5, 2022, no pet.) (mem. op.) (dismissing appeal where appellant's brief failed to comply with Texas Rules of Appellate Procedure 9.4 and 38.1); Tucker v. Fort Worth W. R.R. Co., No. 02-19-00221-CV, 2020 WL 3969586, at *1 (Tex. App.-Fort Worth June 18, 2020, pet. denied) (mem. op.) (where appellant ordered to file amended brief but amended brief still did not comply with Texas Rules of Appellate Procedure, striking amended brief and dismissing appeal for want of prosecution); Tyurin v. Hirsch & Westheimer, P.C., No. 01-17-00014-CV, 2017 WL 4682191, at *1 (Tex. App.-Houston [1st Dist.] Oct. 19, 2017, no pet.) (mem. op.); Petty v. Petty, No. 13-14-00051-CV, 2014 WL 5500459, at *1 (Tex. App.- Corpus Christi-Edinburg Oct. 30, 2014, pet. denied) (mem. op.) (striking appellant's amended brief and dismissing appeal because of failure to comply with Texas Rule of Appellate Procedure 38.1). If appellant fails to timely file his corrected brief, the Court may also dismiss his appeal. See Tex. R. App. P. 38.8(a), 42.3, 43.2(f).
It is so ORDERED.