Charles E. Smith and Betty M. Smith, Individually, and as Trustees for the Smith Family Trust v. Aramark Corporation

Opinion

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-11-00500-CV

CHARLES E. SMITH AND BETTY M. SMITH, INDIVIDUALLY, AND AS TRUSTEES FOR THE SMITH FAMILY TRUST, Appellants,

v.

ARAMARK CORPORATION, Appellee.

NUMBER 13-11-00708-CV

CHARLES E. SMITH AND BETTY M. SMITH, INDIVIDUALLY AND AS TRUSTEES FOR THE SMITH FAMILY TRUST, Appellants,

LONG ISLAND VILLAGE OWNERS ASSOCIATION, INC. F/K/A OUTDOOR RESORTS/SOUTH PADRE OWNER'S ASSOCIATION, INC. AND PAST AND PRESENT BOARD OF DIRECTORS OF LONG ISLAND OWNERS ASSOCIATION, INC. F/K/A OUTDOOR RESORTS/SOUTH PADRE OWNER'S ASSOCIATION, INC., Appellee.

____________________________________________________________ On appeal from the 445th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza, and Perkes Memorandum Opinion Per Curiam

The appellants’ brief in the above causes was due on February 27, 2013. On

March 26, 2013, a motion for extension of time to file the brief was received, and on March

27, 2013, the extension was granted until April 22, 2013. The appellants’ brief was

received on April 26, 2013, but was not in compliance with the Texas Rules of Appellate

Procedure. On May 1, 2013, appellant was directed to file an amended brief that

complies with Texas Rules of Appellate Procedure 9.4(e), 9.4(i)(3) and 38.1(k), and a

motion for leave.

Appellants did not file a brief and on May 30, 2013, the Clerk of the Court notified

appellant that the brief failed to comply with Rule 9.4 (e), 9.4(i)(3), and 38.1(k). See

generally TEX. R. APP. P. 9.4(e), 9.4(i)(3) and 38.1(k). A brief produced on a computer, is

required to be printed in a conventional typeface no smaller than 14-point except for

footnotes, which must be no smaller than 12-point. See TEX. R. APP. P. 9.4 (e).

Appellants’ brief is not printed in typeface at least 14-point as required by Rule 9.4(e),

does not contain a certificate of compliance stating the number of words in the document

as required by Rule 9.4 (i)(3), and does not contain an appendix as required by Rule

38.1(k). See Id. 9.4(e), 9.4(i)(3), 38.1(k).

Appellants were directed to file an amended brief in compliance with the Texas

Rules of Appellate Procedure within ten days of the date of the letter, and notified that if 2 the Court received another brief that did not comply, the Court may strike the brief,

prohibit appellant from filing another, and proceed as if appellant had failed to file a brief,

under which circumstances the Court may affirm the judgment or dismiss the appeal.

See id. 38.9(a), 42.3(b),(c). Appellants have failed to respond to the Court’s notice.

If the appellate court determines that the briefing rules have been flagrantly

violated, it may require a brief to be amended, supplemented, or redrawn. TEX. R. APP.

P. 38.9(a); see id. R. 44.3 (“A court of appeals must not affirm or reverse a judgment or

dismiss an appeal for formal defects or irregularities in appellate procedure without

allowing a reasonable time to correct or amend the defects or irregularities.”). A

reasonable time is given to an appellant when he is provided with an opportunity to

amend his brief. See Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279,

284 (Tex. 1994). If the appellant files another brief that does not comply with the rules of

appellate procedure, the appellate court may strike the brief, prohibit the party from filing

another, and proceed as if the party had failed to file a brief. TEX. R. APP. P. 38.9(a).

Pursuant to Texas Rule of Appellate Procedure 38.8(a), where an appellant has failed to

file a brief, the appellate court may dismiss the appeal for want of prosecution. Id. R.

38.8(a).

Accordingly, we strike appellants’ non-conforming brief and order the appeals

DISMISSED FOR WANT OF PROSECUTION. See TEX. R. APP. P. 38.8(a), 38.9(a),

42.3(b), (c).

PER CURIAM

Delivered and filed the 11th day of July, 2013.