James F. McKinnon v. Robert Stone Wallin and William Brandon Wallin

• Court: Court of Appeals of Texas
• Decided: July 20, 2017
• Docket: 04-16-00800-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas July 20, 2017

No. 04-16-00800-CV

James F. MCKINNON, Appellant

v.

Robert Stone WALLIN and William Brandon Wallin, Appellee

From the County Court, Gillespie County, Texas Trial Court No. 10093 Honorable Polly Jackson Spencer, Judge Presiding

ORDER

On May 23, 2017, we abated this appeal and remanded the cause to the trial court so that it could, pursuant to Texas Rule of Appellate Procedure 34.6(e)(3), determine if the reporter’s record was accurate. A supplemental clerk’s record containing the trial court’s findings has now been filed. The trial court found that the “reporter’s record, as filed, accurately reflects and conforms to what occurred in the proceedings in the trial court on September 19, 2016.” We now REINSTATE this appeal on the docket of this Court.

At the time we abated this appeal, appellant had already filed an appellant’s brief and an amended appellant’s brief. On July 12, 2017, appellant filed what appears to be supplement to his amended appellant’s brief. (Although appellant titles this document a “reply” brief, no appellee’s brief has been filed as of yet.) This brief filed on July 12, 2017, does not conform to Texas Rule of Appellate Procedure 38 because it does not (1) identify the parties and counsel; (2) include a table of contents; (3) include an index of authorities; and (4) include record references in the statement of facts. While substantial compliance with Rule 38 is sufficient, this court may order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38. See TEX. R. APP. P. 38.9(a). We conclude that the formal defects described above constitute flagrant violations of Rule 38.

If appellant wishes to supplement his amended brief filed on March 24, 2017, he must file, within fifteen days of the date of this order, a second amended appellant’s brief, which will replace his first amended brief filed on March 23, 2017. If appellant does not file such a second amended appellant’s brief, we will strike his “reply” brief filed on July 12, 2017. See TEX. R. APP. P. 38.9(a); see also id. 42.3(c) (allowing dismissal of appellant’s case if appellant fails to comply with a requirement of the Texas Rules of Appellate Procedure or an order of this court).

If appellant files a second amended brief, appellees’ brief will be due thirty days after appellant’s second amended brief is filed. If appellant does not file a second amended brief, appellees’ brief will be due forty-five days from the date of this order.

_________________________________ Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 20th day of July, 2017.

___________________________________ Luz Estrada Chief Deputy Clerk