Gary Smith v. National Protective Services

• Court: Court of Appeals of Texas
• Decided: January 19, 2023
• Docket: 02-21-00442-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00442-CV ___________________________

GARY SMITH, Appellant

V.

NATIONAL PROTECTIVE SERVICES, Appellee

On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-318020-20

Before Wallach, J.; Sudderth, C.J.; and Walker, J. Per Curiam Memorandum Opinion MEMORANDUM OPINION

The trial court granted summary judgment for Appellee National Protective

Services (NPS) on Appellant Gary Smith’s claims against it. Smith filed a motion to

set aside the judgment, which the trial court denied. Smith then filed a motion to

reconsider and a motion for new trial, which were overruled by operation of law. On

December 29, 2021, Smith filed a notice of appeal.

Smith’s brief was due on April 13, 2022. On that date, he filed a motion for

extension of time to file his brief, which this court granted, giving him a new briefing

deadline of May 13, 2022.

On May 19, 2022, NPS filed a motion to dismiss for want of prosecution on

the ground that Smith had not filed his brief, requested additional time, or made any

effort to prosecute his appeal. The next day, Smith filed a “Letter to Court,” which we

construed as a motion for extension of time, asserting that he had not received the

copy of the clerk’s record that had been sent to him. We granted Smith’s extension

motion and gave him until June 28, 2022 to file his brief.

On July 19, 2022, we notified Smith that his brief was late again and that his

appeal could be dismissed unless he or any party wanting to continue the appeal filed

a brief by July 29, 2022, along with a motion reasonably explaining his failure to file

the brief and the need for an extension. On August 1, 2022, Smith responded with

another “Letter to the Court” in which he stated he had still not received a copy of

the clerk’s record re-sent by this court and that someone had destroyed his computer.

2 On September 1, 2022, NPS filed a second motion to dismiss asserting that Smith’s

letter did not reasonably explain his failure to file a brief.

This court did not rule on NPS’s second dismissal motion at that time, but on

September 2, 2022, this court sent Smith a letter stating that this appeal could be

dismissed for want of prosecution unless Smith or any party desiring to continue the

appeal filed a brief with the court on or before September 12, 2022, along with a

motion reasonably explaining the failure to file a brief and the need for an extension.

See Tex. R. App. P. 10.5(b), 38.8(a)(1).

On September 13, 2022, we received a phone call from Smith, which prompted

the court to issue a letter informing him that we were once again sending him a copy

of the clerk’s record, that we were extending his brief due date until October 17, 2022,

and that further extension requests would be denied. On October 17, 2022, Smith

finally filed his brief.

However, Smith’s brief fails to comply with the appellate rules in that it

(1) does not contain the statement of facts with record references, see Tex. R. App. P.

38.1(g); (2) does not contain a summary of argument, see Tex. R. App. P. 38.1(h);

(3) does not contain a clear and concise argument for the contentions made, with

appropriate citations to legal authorities and to the record, see Tex. R. App. P. 38.1(i);

(4) does not contain a prayer, see Tex. R. App. P. 38.1(j); (5) does not contain an

appendix, see Tex. R. App. P. 38.1(k); (6) does not contain a front cover, see 2nd Tex.

App. (Fort Worth) Loc. R. 1.A; and (7) does not contain a certificate of compliance,

3 see Tex. R. App. P. 9.4(i). We requested that Smith file a corrected brief remedying the

identified rule violations, and we warned him that failure to do so could result in this

court striking the filed brief and dismissing the appeal. Smith filed a motion

requesting more time to correct the brief, which this court granted, giving him until

November 18, 2022 to correct his brief. He has not filed a corrected brief.

A pro se litigant is held to the same standard as a licensed attorney. Thus, while

an appellant has the right to represent him- or herself on appeal, that right comes with

the obligation to follow the applicable rules of procedure, including the Texas

Appellate Rules of Procedure.1 Yeldell v. Denton Cent. Appraisal Dist., No. 2-07-313-CV,

2008 WL 4053014, at *2 (Tex. App.—Fort Worth Aug. 29, 2008, pet. denied) (mem.

op.). Smith was therefore required to file a brief that complied with the mandatory

appellate briefing rules. See Porter v. Kennard Law PC, No. 01-22-00153-CV,

2022 WL 11413164, at *4 (Tex. App.—Houston [1st Dist.] Oct. 20, 2022, no pet. h.)

(mem. op.). We strike Smith’s brief and dismiss his appeal for want of prosecution. See

Tex. R. App. P. 38.8(a)(1) , 38.9(a), 42.3(b), (c); Porter, 2022 WL 11413164, at *4. We

overrule NPS’s second motion as moot.

Per Curiam

Delivered: January 19, 2023

1 Smith’s brief asserts that the trial court erred by holding him to the same standard as a licensed attorney, but the trial court was required to do exactly that. See Yeldell, 2008 WL 4053014, at *2.