Opinion
Appellate case number: 01-12-01090-CV Trial court case number: 2011-37680
07-26-2013
Eugene V. McMahon v. Marcia Zimmerman, Individually, and the Zimmerman Law Firm, L.L.P.
ORDER
Trial court: 281st District Court of Harris County
Appellees, Marcia Zimmerman and the Zimmerman Law Firm, L.L.P., have filed a "Motion for Involuntary Dismissal in Civil Case." In their motion, Zimmerman and the Zimmerman Law Firm request dismissal of this case based on the alleged failure to comply with Texas Rule of Appellate Procedure 38.1 by appellant, Eugene V. McMahon. In his response, McMahon "recognize[d] the defects cited by Appellees [sic] motion and respectfully request[ed] the opportunity to re-brief to cure the defects." McMahon also filed a "Motion for Extension of Time to Refile Brief to Cure Procedural Defects in Civil Case," seeking "at least ten (10) additional days" to correct his brief. Finally, McMahon re-filed his motion for extension with a certificate of conference indicating that Zimmerman and the Zimmerman Law Firm have agreed to his motion.
Neither the statement of the case nor the statement of facts in McMahon's brief contain s any references to the record. See TEX. R. APP. P. 38.1(d), (g). Further, McMahon failed to include a copy of the trial court's findings of fact and conclusions of law in the appendix. See TEX. R. APP. P. 38.1(k)(1)(B). Nevertheless, briefing rules are to be liberally construed, substantial compliance with Rule 38 is sufficient, and we must permit a party to amend, supplement, or redraw a brief even when Rule 38 has been flagrantly violated. See TEX. R. APP. P. 38.9.
Zimmerman and the Zimmerman Law Firm also contend that McMahon's brief fails "to make appropriate citations to the record when presenting several purported facts," citing to Rule 38.1(h). Rule 38.1(h), however, applies to the summary of the argument and does not require record references. See TEX. R. APP. P. 38.1(h).
Accordingly, we GRANT McMahon's agreed motion for an extension of time, DISMISS McMahon's non-agreed motion as moot, and DENY Zimmerman and the Zimmerman Law Firm's motion for involuntary dismissal. We further ORDER McMahon to file an amended brief, containing all necessary references to the record and conforming to Rule 38.1, no later than August 13, 2013. Zimmerman and the Zimmerman Law Firm's brief will be due no later than 30 days after the date McMahon's amended motion is filed. See TEX. R. APP. P. 38.6(b).
It is so ORDERED. Judge's signature: Harvey Brown
[√] Acting individually [ ] Acting for the Court