in the Estate of Robert S. Kam

• Court: Court of Appeals of Texas
• Decided: February 7, 2023
• Docket: 05-22-01049-CV
• Status: Published

Opinion

DISMISS and Opinion Filed February 7, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01049-CV

IN THE ESTATE OF ROBERT S. KAM, DECEASED

On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. PR-11-01368-3

MEMORANDUM OPINION Before Chief Justice Burns, Justice Molberg, and Justice Pedersen, III Opinion by Justice Pedersen III

This is an appeal from the probate court’s order adopting and approving the

associate judge’s judgment overruling appellant’s contest to a trust agreement and

her brother’s will. Asserting appellant, who is appearing pro se, has failed to file a

brief that complies with the rules of appellate procedure despite being given an

opportunity to do so, appellee has filed a motion to dismiss.1 We grant the motion.

It is well-settled that litigants who represent themselves are held to the same

standards as licensed attorneys and must comply with the applicable procedural rules

1 In the alternative, appellee sought an extension of time to file his response brief. However, he has since filed a “provisional” brief. 1 and properly present their case. Mansfield State Bank v. Cohn, 573 S.W.2d 181,

184-85 (Tex. 1978); Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 677-78 (Tex.

App.—Dallas 2004, pet. denied). At the appellate level, litigants present their case

by way of a brief. Because the appellant bears the burden of showing trial court

error, an appellant’s brief should “acquaint the court with the issues in a case and []

present argument that will enable the court to decide the case[.]” See TEX. R. APP.

P. 38.9. To that end, the brief must contain a statement of facts and argument for the

contentions made with appropriate citations to the record. See id. 38.1(g), (i). A

court has no duty to search a record without guidance from an appellant to determine

whether an assertion of error is valid, and a brief that does not cite to the record fails

and justifies dismissal. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d

893, 895-97 (Tex. App.—Dallas 2010, no pet.).

Appellant here filed a brief that, in relevant part, did not include citations to

the record. In accordance with Texas Rule of Appellate Procedure 38.9, we

informed appellant by letter of the defects in her brief, directed her to file a compliant

brief, and cautioned her that failure to do so would result in dismissal of the appeal.

See TEX. R. APP. P. 38.8(a)(1), 38.9, 42.3(b),(c). Appellant filed an amended brief,

but, as appellee asserts, the amended brief also does not include citations to the

record. Instead, it includes citations to the appendix that consists, in part, of what

appears to be personal copies of exhibits and pleadings, some with extraneous

annotations and markings.

–2– In response to appellee’s motion to dismiss, appellant explains her appendix

is intended “to preserve valuable court time [and] focus only on the core elements

of th[e] case[]” as the case “is quite old and there are a mountain of documents[.]”2

She states, however, that if the Court “requires a different style of presentation,” she

would “be pleased to edit [her] presentation further” if we “red line [the] brief” and

“provide [her] a comparable sample to follow[.]”

Our letter informing appellant about the defects in her brief and giving her an

opportunity to file a corrected brief cited the pertinent rules she failed to follow. We

are required to do nothing more. Were we to “red line [the] brief” and “provide [her]

a comparable sample to follow[,]” we would be abandoning our role as judges and

giving her an unfair advantage over appellee.

Because appellant has failed to file a brief that cites to the record, despite

being given an opportunity to do so, we grant appellee’s motion and dismiss the

appeal. See TEX. R. APP. P. 42.3(c); Bolling, 315 S.W.3d at 897.

/Bill Pedersen, III/ BILL PEDERSEN, III JUSTICE

221049F.P05

2 She also explains the annotations and markings are intended “to assist the court in focusing on the core testimony in the case that supports the arguments [she has] presented.”

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE ESTATE OF ROBERT S. On Appeal from the Probate Court KAM, DECEASED No. 3, Dallas County, Texas Trial Court Cause No. PR-11-01368- No. 05-22-01049-CV 3. Opinion delivered by Justice Pedersen, III, Chief Justice Burns and Justice Molberg participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellee David J. Kam, Individually, as Independent Executor of the Estate of Robert S. Kam, Deceased, and as Trustee of the Robert S. Kam Trust, as Amended and Restated recover his costs, if any, of this appeal from appellant Carol M. Kam.

Judgment entered February 7, 2023.

–4–