David Lee Daniels, III v. ZLOS Investment Trust

• Court: Court of Appeals of Texas
• Decided: July 11, 2023
• Docket: 01-22-00246-CV
• Status: Published

Opinion

Opinion issued July 11, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00246-CV ——————————— DAVID LEE DANIELS, III, Appellant V. ZLOS INVESTMENT TRUST, Appellee

On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Case No. 1181380

MEMORANDUM OPINION

Appellant, David Lee Daniels, III, filed a pro se notice of appeal from the trial

court’s March 30, 2022 final judgment. The appellate record was completed on June

18, 2022. However, on June 14, 2022, prior to the appellate record being completed,

appellant filed a brief with the Court. Texas Rule of Appellate Procedure 38.1 outlines items which must be

included in an appellant’s brief. See TEX. R. APP. P. 38.1. An appellant’s failure to

file a brief that complies with the requirements of rule 38.1 can result in the Court

striking a brief, and ultimately, in dismissal of an appeal. See Bennett v. Jenkins,

No. 01-21-00557-CV, 2022 WL 3268531, at *2 (Tex. App.—Houston [1st Dist.]

Aug. 11, 2022, no pet.) (dismissing appeal for want of prosecution where pro se

appellant failed to file “corrected brief” after Court struck brief for failure to comply

with Texas Rule of Appellate Procedure 38.1). Appellant’s June 14, 2022 brief

failed to comply with rule 38.1.

Because the reporter’s record had not yet been filed at the time appellant filed

his June 14, 2022 brief, the brief failed to contain “record references” or “a clear and

concise argument for the contentions made, with appropriate citations to authorities

and the record,” as required by the Texas Rules of Appellate Procedure. See TEX.

R. APP. P. 38.1(d), (g), (i).

Further, while appellant’s June 14, 2022 brief included a section titled

“[t]imeline & [p]rocedural [h]istory,” the rules do not include such a section heading

among the required items. To the extent that this section was intended as a

“statement of the case,” it failed to comply with the rules because a statement of the

case “should be supported by record references, seldom should exceed one-half

page, and should not discuss the facts.” See TEX. R. APP. P.38.1(d). Additionally,

2 to the extent that this section was intended as a “statement of the facts,” it failed to

comply with the rules because a statement of the facts “must state concisely and

without argument the facts pertinent to the issues or points presented,” and further,

the “statement must be supported by record references.” See TEX. R. APP. P. 38.1(g).

This section of appellant’s June 14, 2022 brief did not include any record references,

was approximately eleven pages long, and included an argumentative discussion of

the purported facts.

Texas Rule of Appellate Procedure 38.1 also requires an appellant’s brief to

include an “issues presented” section which “must concisely state all issues or points

presented for review.” See TEX. R. APP. P. 38.1(f). Appellant’s June 14, 2022 brief

included an “issues presented” section, however, it failed to comply with the rules

as the section was approximately eight pages long and did not limit its discussion to

a concise statement of the issues or points presented for review.

Additionally, an appellant’s brief in an appellate court “must not

exceed . . . 15,000 words if computer generated, and 50 pages if not.” See TEX. R.

APP. P. 9.4(i)(2)(B). And a brief “must include a certificate . . . [of] an unrepresented

party stating the number of words in the document.” See TEX. R. APP. P. 9.4(i)(3).

Appellant’s June 14, 2022 brief did not include a certificate of compliance stating

the number of words in the document.

3 For these reasons, on August 30, 2022, the Court struck appellant’s June 14,

2022 brief and ordered appellant to file a corrected brief that complied with the

Texas Rules of Appellate Procedure. Appellant was directed to file his corrected

brief within thirty days of the date of the order striking his June 14, 2022 brief. See

TEX. R. APP. P. 38.6(d). However, appellant failed to timely file a corrected brief.

On December 19, 2022, the Clerk of this Court notified appellant that the time

to file his corrected brief had expired, and that this appeal was subject to dismissal

unless a corrected brief or a motion to extend time to file a corrected brief was filed

within ten days of the notice. See TEX. R. APP. P. 38.8(a) (governing failure of

appellant to file brief), 42.3(b) (allowing involuntary dismissal of appeal for want of

prosecution), 42.3(c) (allowing involuntary dismissal of case for failure to comply

with notice from Clerk of Court). Despite the notice that this appeal was subject to

dismissal, appellant did not adequately respond.

Accordingly, we dismiss this appeal for want of prosecution. See TEX. R. APP.

P. 38.8(a)(1), 42.3, 43.2(f); Orozco v. Reserve at Pecan Valley Apartments, No.

04-21-00447-CV, 2022 WL 848363, at *1 (Tex. App.—San Antonio Mar. 23, 2022,

no pet.) (mem. op.); In re W.A.F., No. 04-19-00723-CV, 2020 WL 5913842, at *1

(Tex. App.—San Antonio Oct. 7, 2020, no pet.) (mem. op.) (after appellate court

struck appellant’s brief for failure to comply with Texas Rule of Appellate Procedure

38.1, appellant failed to file amended brief as ordered, and appellate court dismissed

4 appeal for want of prosecution); see also Averett v. Huffman Indep. Sch. Dist., No.

01-19-00482-CV, 2020 WL 717543, at *1 (Tex. App.—Houston [1st Dist.] Feb. 13,

2020, no pet.) (mem. op.) (“When an appellant fails to file a brief, we may dismiss

his appeal for want of prosecution.”). All pending motions are dismissed as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Guerra and Farris.