Opinion
04-21-00516-CV
08-24-2022
Lon E. GRINAGE & Marilyn Grinage, Appellants v. Jason Phillip THOMPSON & Terrie Mylene Thompson, Appellees
From the 218th Judicial District Court, Wilson County, Texas Trial Court No. CVW1900810 Honorable Lynn Ellison, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
MEMORANDUM OPINION
PER CURIAM
DISMISSED FOR WANT OF PROSECUTION
On April 19, 2022, this court struck Appellants' brief for failing to comply with briefing rules under the Texas Rules of Appellate Procedure. See Tex. R. App. P. 9.4, 9.5, 38.1. We ordered Appellants to amend the brief and submit a rules-compliant brief within ten days. We warned Appellants that if they did not, the case could be dismissed for want of prosecution. See id. R. 38.9(a), 38.8(a).
Appellants requested an extension of time to find a new attorney, and we granted the extension. Appellants then requested an additional extension of time to find a new attorney, which we also granted. When no brief was filed on the extended due date, this court ordered Appellants to show cause as to why the appeal should not be dismissed for want of prosecution. Appellants responded that, for health reasons, they needed additional time to file the brief. We granted the additional time.
On August 8, 2022, Appellants filed a brief that contains the required section headings from Rule 38.1 and some of the content, but the brief nevertheless suffers from serious defects. See Tex. R. App. P. 9.4, 9.5, 38.1.
Appellants' Original Brief
After Appellants filed their original brief, on March 14, 2022, we advised them that the brief omitted the following:
• Table of Contents,
• Index of Authorities,
• Statement of the Case,
• Any Statement Regarding Oral Argument,
• Issues Presented,
• Statement of Facts (that complies with the Rules),
• Summary of the Argument,
• Argument,
• an Appendix (that complies with the Rules),
• Certificate of Compliance
• Certificate of Service.See id. R. 9.4, 9.5, 38.1. We also advised Appellants that the brief had these additional defects:
• No part of the brief contains any citations to the record. Contra id. R. 38.1(g) ("The statement [of facts] must be supported by record references."); id. R. 38.1(i) ("The brief must contain . . . appropriate citations . . . to the record.").
• The portions of the brief that may be construed as a statement of facts recite alleged facts and complaints, but the brief does not state how the trial court erred or present any legal arguments, with appropriate citations to authorities and the record, to present any legal basis for this court to reverse the trial court's judgment. Contra id.
• The brief does not recite the standard of review, and, except for a single reference to one federal statute, it contains no citations to rules or statutes, or any references to case law. Contra id. (requiring "appropriate citations to authorities").
We advised Appellants that, as filed, their original brief did not properly present anything for appellate review. As stated above, we ordered Appellants 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 specifically warned Appellants that if the amended brief did not comply with our April 19, 2022 order, we could "strike the brief, prohibit [Appellants] from filing another, and proceed as if [Appellants] 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).
Appellants' Amended Brief
Appellants timely filed an amended brief, but it does not correct all the deficiencies noted in our April 19, 2022 order or comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1; Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.-Dallas 2010, no pet.).
Several items remain missing in the amended brief:
• Index of Authorities,
• Any Statement Regarding Oral Argument,
• Statement of Facts (that complies with the Rules),
• Argument (that complies with the Rules),
• an Appendix (that complies with the Rules),
• Certificate of Compliance
• Certificate of Service.
In addition, there are many formatting and typographical errors throughout the amended brief. Cf. Tex. R. App. P. 9.4. The brief contains two documents from the clerk's record, one document that cannot be found in the clerk's record, and no citations to the record. See Bolling, 315 S.W.3d at 896. Appellants' motion for new trial is attached as the appendix. Contra Tex. R. App. P. 38.1(k)(1).
The argument section contains no coherent argument, no citations to the record, and no legal citations. Contra id. R. 38.1(i); Bolling, 315 S.W.3d at 896. It also challenges a court order from 2018, not the 2021 judgment that has been appealed from. Contra Tex. R. App. P. 38.1(i); Bolling, 315 S.W.3d at 896.
Further, the documents contained within the brief contain handwritten notes regarding complaints that cannot be found within the 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."). Because of the lack of record citations, it is unclear which, if any, of the factual assertions Appellants make were presented to the trial court. Contra Greystar, LLC, 426 S.W.3d at 865 (refusing to review alleged facts outside the appellate record).
To obtain appellate review, it was Appellants' 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"); Jones v. Hous. Auth. of the City of Dallas, Tex. Park Manor, No. 05-19-00841-CV, 2020 WL 3118615, at *1 (Tex. App.-Dallas June 12, 2020, no pet.); Greystar, LLC, 426 S.W.3d at 865.
Appellants' amended brief has failed to meet their burden, and we may not create or support Appellants' arguments for them. 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.").
Appellants' amended brief has failed to properly present anything for appellate review. See Cf. Jones, 2020 WL 3118615, at *1 ("We are not required to search the appellate record, with no guidance from the briefing party, to determine if the record supports the party's argument."); Greystar, LLC, 426 S.W.3d at 865 (refusing to review alleged facts outside the appellate record).
Conclusion
Appellants have twice failed to submit a brief that complies with the Texas Rules of Appellate Procedure. We strike Appellants' amended brief, prohibit them 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).