In the Interest of G.K., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 23, 2023
• Docket: 05-21-00935-CV
• Status: Published

Opinion

AFFIRM; Opinion Filed February 23, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00935-CV

IN THE INTEREST OF G.K., A CHILD

On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-16123

MEMORANDUM OPINION Before Justices Carlyle, Goldstein, and Kennedy Opinion by Justice Kennedy Father, a pro se litigant, appeals from a final order in a suit affecting parent–

child relationship. He failed to comply with the briefing requirements of our

appellate rules after receiving notice of the deficiency and an opportunity to cure.

Thus, he waives his complaint. Because all dispositive issues are settled in law, we

issue this memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4. We affirm.

BACKGROUND

In 2014, a child G.K. was born to Mother, and Father filed an

acknowledgement of paternity of G.K. On August 16, 2019, Mother filed this underlying suit, in which she sought to

be named sole managing conservator of G.K. On September 4, 2019, Father filed

an answer of general denial and a counter-petition, seeking to be named sole

managing conservator or, alternatively, joint managing conservator with Mother.

After conducting a bench trial, the trial court judge signed a final order on July 30,

2021, appointing Mother as sole managing conservator and Father as possessory

conservator. Father timely filed his notice of appeal.

On April 25, 2022, Father filed a brief. On May 3, 2022, this Court sent

written notice to Father that his brief did not satisfy the minimum requirements of

the Texas Rules of Appellate Procedure. That notice advised Father that his brief

was deficient as follows:

The table of contents does not indicate the subject matter of each issue or point, or group of issues or points. TEX. R. APP. P. 38.1(b).

It does not contain a concise statement of the case, the course of proceedings, and the trial court’s disposition of the case supported by record references. TEX. R. APP. P. 38.1(d).

It does not contain a concise statement of the facts supported by record references. TEX. R. APP. P. 38.1(g).

It does not contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. TEX. R. APP. P. 38.1(h).

The argument does not contain appropriate citations to the record. TEX. R. APP. P. 38.1(i).

The trial court’s judgment [was omitted from the appendix]. TEX. R. APP. P. 38.1(k)(1)(A).

–2– We initially gave Father ten days to correct the specified deficiencies. Father

submitted an amended brief electronically, and this Court notified him the brief

would not be filed because it did not comply with rule 9 of our appellate rules. See

TEX. R. APP. P. 9.4(j) (form requirements for electronically filed documents),

(k) (permitting court to strike nonconforming documents or identify error and permit

party to resubmit in conforming format). Father filed two motions for extension of

time to file his brief, which were granted, and his amended brief was filed on June

29, 2022.

DISCUSSION

On appeal, as in trial, a pro se appellant must properly present his case. See

Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet.

denied). Although we liberally construe pro se briefs, litigants who represent

themselves are required to comply with applicable rules and are held to the same

standards as litigants represented by counsel. See Mansfield State Bank v. Cohn,

573 S.W.2d 181, 184–85 (Tex. 1978); In re N.E.B., 251 S.W.3d 211, 211–12 (Tex.

App.–Dallas 2008, no pet.). To hold otherwise would give pro se litigants an unfair

advantage over litigants with an attorney. In re N.E.B., 251 S.W.3d at 212.

The Texas Rules of Appellate Procedure control the required contents and

organization of an appellant’s brief. See TEX. R. APP. P. 38.1; ERI Consulting

Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Under those rules, an

appellant’s brief must concisely state all issues or points presented for review and,

–3– among other things, “contain a clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).

Briefing rules are to be construed liberally in an effort to ascertain the real basis of

appeal. Manney & Co. v. Tex. Reserve Life Ins. Co., 407 S.W.2d 345, 349 (Tex.

App.—Dallas 1966, no writ). Briefs are meant to acquaint the court with the issues

in a case and to present argument that will enable the court to decide the case. TEX.

R. APP. P. 38.9. Substantial compliance with the briefing rules is sufficient. See id.

If, after reviewing the appellant's brief, we determine there is a formal defect in the

appellant’s briefing, we may require a brief to be amended. See id. We may make

any order necessary for a satisfactory submission of the case. See id. When an

appellant submits a brief from which we cannot identify the legal arguments and

issues, the brief must be corrected to permit a satisfactory submission of the case

before we resolve the appeal. Where the briefing defect has been noted, and the

party has been given the opportunity to cure but fails to do so, we may resolve the

case as necessary. See TEX. R. APP. P. 44.3.

Despite having been given an opportunity to correct the deficiencies in his

brief, Father failed to do so. Father’s amended brief raises eleven issues, challenging

the trial court’s subject-matter and personal jurisdiction, alleging violations of his

constitutional rights, asserting misrepresentations in the record, challenging the

sufficiency of the evidence to support the final order, and charging the trial court

judge with bias.

–4– Father has the burden to present and discuss his assertions of error in

compliance with the appellate briefing rules. See TEX. R. APP. P. 38.1. While some

citations to authorities are included in support of many of Father’s issues, his brief

contains no citations to the record. See TEX. R. APP. P. 38.1(i). We have no duty or

right to perform an independent review of the record and the applicable law to

determine if the trial court erred. Strange, 126 S.W.3d at 678.

We are reluctant to decide a case on the basis of briefing waiver, as the rules

express a clear preference for resolution on the merits where possible. But where,

as here, the party has been notified of procedural and substantive deficiencies in a

brief and fails to correct them so as to remit a satisfactory submission of the case,

we are presented with only the presumption of correctness of the underlying

judgment.

CONCLUSION

We affirm the trial court’s order.

/Nancy Kennedy/ NANCY KENNEDY JUSTICE 210935F.P05

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

IN THE INTEREST OF G.K., A On Appeal from the 330th Judicial CHILD District Court, Dallas County, Texas Trial Court Cause No. DF-19-16123. No. 05-21-00935-CV Opinion delivered by Justice Kennedy. Justices Carlyle and Goldstein participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee Crystal Ramon Taylor recover her costs of this appeal from appellant Anthony Kumagah Jr.

Judgment entered this 23rd day of February 2023.

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