David Duran v. Hardy Burke

• Court: Court of Appeals of Texas
• Decided: November 29, 2018
• Docket: 02-18-00176-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00176-CV ___________________________

DAVID DURAN, Appellant

V.

HARDY BURKE, Appellee

On Appeal from the 211th District Court Denton County, Texas Trial Court No. 17-7583-211

Before Kerr, Pittman, and Birdwell, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION AND JUDGMENT

Appellant David Duran’s brief was originally due on August 20, 2018. Before

his brief was due, Duran filed a “Motion to File Appellant[’s] Brief o[n] Grounds of

Errors,” which this court construed as a motion for extension of time to file his brief.

We granted Duran’s motion and ordered him to file his brief by September 19, 2018.

On September 11, 2018, Duran filed a document that we construed as a brief.

This brief lists eight grounds for Duran’s appeal without further explanation and

lacks, among other things, a statement of facts, argument, and citation to authorities.

The next day, we notified Duran of the deficiencies in his brief, specifically listing the

ways in which his brief does not comply with the rules of appellate procedure. See

Tex. R. App. P. 9.4(i), 38.1(a)–(d), (g)–(i), (k). We directed Duran to file an amended,

rule-compliant brief by September 24, 2018. See Tex. R. App. P. 9, 38; 2nd Tex. App.

(Fort Worth) Loc. R. 1. We warned him that his failure to do so could result in a

waiver of noncompliant points or our striking his noncompliant brief and dismissing

the appeal. See Tex. R. App. P. 38.8(a), 38.9(a), 42.3.

In response, Duran filed a “Motion to File Appellant’s Brief of Facts,” which

we construed as his attempt to file a brief. Like Duran’s original brief, this brief was

also noncompliant. It lists several facts without record references, lacks argument and

citation to authorities, and does not satisfy rule 38.1’s other formal requirements. See

Tex. R. App. P. 38.1. Accordingly, we denied Duran’s “Motion to File Appellant’s

Brief of Facts” and ordered him to file a corrected brief by October 11, 2018. We 2 warned Duran again that his failure to do so could result in a waiver of noncompliant

points or our striking his noncompliant briefs and dismissing the appeal. See Tex. R.

App. P. 38.8(a), 38.9(a), 42.3. We have received no response from Duran.

Because Duran has failed to file an amended, rule-compliant brief even after we

have afforded him two opportunities to do so, we strike Duran’s noncompliant briefs

and dismiss the appeal. See Tex. R. App. P. 38.8(a)(1), 38.9(a), 42.3(b)–(c), 43.2(f).

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Delivered: November 29, 2018