Opinion
No. 04-19-00823-CV
09-02-2020
John (Jack) PALAU, Appellant v. ACT INVESTMENTS, INC.; Capacity Builders, Inc.; and Deborah Montgomery, Appellees
MEMORANDUM OPINION
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 19-144
Honorable Kirsten Cohoon, Judge Presiding PER CURIAM Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice DISMISSED FOR WANT OF PROSECUTION
In the underlying suit, Appellees argued John and Jamie Palau tried to avoid enforcement of an out-of-state judgment against them by fraudulently transferring property in Texas to a niece. Appellant John Palau appeals from the trial court's order granting summary judgment in Appellees' favor. Appellant, who is not an attorney, is representing himself in this appeal.
Because Appellant twice failed to file a brief that complies with the Texas Rules of Appellate Procedure, we dismiss this appeal for want of prosecution.
APPELLANT'S ORIGINAL BRIEF
After Palau filed his original brief, on July 30, 2020, we advised him that his brief did not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. We advised Palau that his brief omitted the following:
• Table of Contents,See id. R. 9.4, 9.5, 38.1. We also advised Palau that his brief had 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.").
• 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").
We advised Palau that, in its submitted form, his brief did not present anything for appellate review, and we struck his brief. We ordered Palau to file an amended brief that corrected all the violations listed above and fully complied with the applicable rules. See, e.g., id. R. 9.4, 9.5, 38.1.
We warned Palau that if the amended brief did not comply with our July 30, 2020 order, we could "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).
APPELLANT'S AMENDED BRIEF
After this court granted Palau an extension of time, Palau filed an amended brief, but it does not correct all the deficiencies noted in our July 30, 2020 order or comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1.
In the brief's "Overview and Statement of the Case and Facts," it contains some citations to the clerk's record. But the "Arguments and Authorities" section does not contain "appropriate citations . . . to the record." Contra TEX. R. APP. P. 38.6(i); Canton-Carter, 271 S.W.3d at 931.
In Palau's first issue, comprising three pages, his brief assert numerous facts, but none of his assertions are supported by citations to the clerk's record. Contra TEX. R. APP. P. 38.6(i). In Palau's second issue, comprising eight pages, the brief again asserts numerous facts, but none are supported by citations to the clerk's record. Contra id. The second issue includes cell phone screen shots of text messages, excerpts from e-mails, and a scan from an Internal Revenue Service letter. None of these are supported by citations to the record. In the third issue, one sentence contains a single citation to the clerk's record, but the rest of the five pages devoted to the third issue—which are replete with asserted facts—are unsupported by any other citations to the record. Contra id.
Because of the lack of record citations, it is unclear which, if any, of the factual assertions Palau makes were presented to the trial court. Contra Greystar, LLC, 426 S.W.3d at 865 (refusing to review alleged facts outside the appellate record). And "[this court is] not required to search the appellate record, with no guidance from the briefing party, to determine if the record supports the party's argument." Jones v. Hous. Auth. of City of Dall, Tex. Park Manor, No. 05-19-00841-CV, 2020 WL 3118615, at *1 (Tex. App.—Dallas June 12, 2020, no pet. h.) (citing Pratt v. State, 907 S.W.2d 38, 47 (Tex. App.—Dallas 1995, writ denied)). To obtain appellate review, it was Palau's burden to present legal arguments, supported by appropriate legal authorities, based on facts in the record, as shown by appropriate citations to the record. See TEX. R. APP. P. 38.1(i) (requiring "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); Canton-Carter, 271 S.W.3d at 931.
Palau's amended brief has failed to meet his burden, and we may not create or support Palau's arguments for him. Cf. Jones, 2020 WL 3118615, at *1 ("We also 'know of no authority obligating us to become advocates for a particular litigant through performing their research and developing their argument for them.'" (quoting Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.))); Meyer v. State, 310 S.W.3d 24, 26 (Tex. App.—Texarkana 2010, no pet.) ("We do not, and cannot, create arguments for parties—we are neither the appellant's nor the appellee's advocate."); Canton-Carter, 271 S.W.3d at 931 (warning that appellate courts may not construct an argument for an appellant because "[t]o do so would force this court to stray from [its] role as a neutral adjudicator and become an advocate for appellant").
Palau's amended brief has failed to present anything for appellate review. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 897 (Tex. App.—Dallas 2010, no pet.) ("Without adequate briefing, [Appellant's] claim is nothing more than a personal opinion. As such, it is not entitled to judicial review.").
CONCLUSION
Palau has twice failed to submit a brief that complies with the Texas Rules of Appellate Procedure. We strike Palau's amended brief, prohibit him from filing another, and dismiss this appeal for want of prosecution. See TEX. R. APP. P. 9.4, 38.8(a)(1), 38.9(a), 42.3(b),(c).
PER CURIAM