From Casetext: Smarter Legal Research

Ptomey v. Texas Tech Univ.

Court of Appeals of Texas, Seventh District, Amarillo
Jul 6, 2007
No. 07-06-0332-CV (Tex. App. Jul. 6, 2007)

Opinion

No. 07-06-0332-CV

July 6, 2007.

Appeal from the 99th District Court of Lubbock County; No. 2003-523,777; Honorable William C. Sowder, Judge.

Panel D: QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


ON MOTION FOR REHEARING


After perfecting appeal and filing four motions for extension of time in which to file her brief, appellant submitted a brief which did not substantially comply with Rules of Appellate Procedure 9 and 38. Notably, no copy of the brief was signed, or contained a prayer for relief or certificate of service. See Tex. R. App. P. 9.1(a), 9.5(e), 38.1(I). The brief also failed to conform to the formatting requirements of Rule 9.4(d) and (e). When appellant failed to respond to this court's May 16, 2007 letter directing her to file a corrected brief on or before Tuesday, May 29, 2007, we dismissed the appeal for want of prosecution and failure to comply with a directive of this Court. See Tex. R. App. P. 42.3(b) (c). Appellant has now filed a verified motion for rehearing alleging her counsel never received this court's May 16, 2007 letter, the file stamped copy of the brief returned to counsel contains the page missing from the copies filed with the court, and counsel was "unaware" the brief did not comply with the rules. Appellant seeks reinstatement of the appeal. She also requests the court file a brief which does not comply with Rule 9.4 or permit the filing of a brief which does not comply with the page limitations of Rule 38.4.

We note this motion, like her brief, fails to comply with the requirements of Rule 9.4(d) and (e). That rule applies to all documents filed with an appellate court by a party.

Specifically, appellant's motion states that counsel was unaware the brief did not comply with "Court rules." This court has not adopted local rules. The Texas Rules of Appellate Procedure govern briefing practice in this court.

Appellee Texas Tech University has filed a response opposing both reinstatement of the appeal and enlargement of the briefing page limits. The response points to the history of delay in prosecution of this appeal and challenges as unpersuasive appellant's representation she did not receive notice of the briefing defects before her appeal was dismissed. Appellee argues granting appellant's request to enlarge the page limitations will prejudice appellee.

The procedural history of this appeal suggests appellant's counsel has given less-than-thorough attention to the Rules of Appellate Procedure, but it does not present an objective basis on which we can conclude counsel timely received, but mis-read or disregarded, our notice of his briefing deficiencies and direction to file a corrected brief. Relying instead on counsel's integrity, we grant appellant's motion for rehearing and reinstate the appeal. We deny appellant's request to suspend application of the rules governing briefing. Appellant is directed to file a brief which complies with the applicable Rules of Appellate Procedure, not later than 5 p.m. local time, July 16, 2007. If a conforming appellant's brief is not received by this court's clerk by that date and time, the appeal will be dismissed, without further notice.

In a supplement to her motion, appellant's counsel advises the court that he received our May 16 letter in his mail on June 13.


Summaries of

Ptomey v. Texas Tech Univ.

Court of Appeals of Texas, Seventh District, Amarillo
Jul 6, 2007
No. 07-06-0332-CV (Tex. App. Jul. 6, 2007)
Case details for

Ptomey v. Texas Tech Univ.

Case Details

Full title:DR. NYLA PTOMEY, APPELLANT v. TEXAS TECH UNIVERSITY, APPELLEE

Court:Court of Appeals of Texas, Seventh District, Amarillo

Date published: Jul 6, 2007

Citations

No. 07-06-0332-CV (Tex. App. Jul. 6, 2007)