Leah Butterworth v. Living Assistance Services, Inc. and Versa Sales, LLC D/B/A Visiting Angels

• Court: Court of Appeals of Texas
• Decided: August 29, 2022
• Docket: 05-22-00138-CV
• Status: Published

Opinion

DISMISS and Opinion Filed August 29, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00138-CV

LEAH BUTTERWORTH, Appellant V. LIVING ASSISTANCE SERVICES, INC. AND VERSA SALES, LLC D/B/A VISITING ANGELS, Appellees

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-09864

MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Goldstein This is an appeal from an order granting a motion to dismiss pursuant to rule

91a of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 91a. After reviewing

appellant’s brief, we notified her that her brief was deficient and provided a detailed

explanation of why her brief did not meet the requirements of Texas Rule of

Appellate Procedure 38. See TEX. R. APP. P. 38.1. We noted that among other things,

appellant failed to provide a statement of facts and failed to provide a clear and

concise argument with appropriate citations to authorities and to the record. We

directed appellant to file an amended brief and cautioned her that failure to do so might result in the dismissal of the appeal without further notice. Although given

the opportunity to file an amended brief, appellant declined to do so.

An appellant’s brief must substantially comply with the Rules of Appellate

Procedure. See id. 38.9. A brief must, among other requirements, include (1) a

concise statement of the complaint presented for review along with pertinent facts

supported by record references; (2) succinct and clear argument for why the

complaint has merit; and, (3) application of relevant legal authorities with

appropriate citations to authorities and to the record. See TEX. R. APP. P.

38.1(f),(g),(i). The formal briefing requirements in the Rules of Appellate Procedure

are intended to ensure, among other things, that an appellate court has the

information necessary to resolve the relevant issues while maintaining its role as a

neutral adjudicator. Id. 38.9; see Ihnfeldt v. Reagan, No. 02-14-00220-CV, 2016

WL 7010922, at *9 (Tex. App.—Fort Worth Dec. 1, 2016, pet. denied) (mem. op.).

Thus, to substantially comply with the Rules of Appellate Procedure, an appellant’s

brief must, at a minimum, (1) not “flagrantly violat[e]” the formal briefing

requirements; and (2) present the issues, facts, and legal authorities so as to “acquaint

the court with the issues in [the] case and ... enable the court to decide the case.”

TEX. R. APP. P. 38.9; see Horton v. Stovall, 591 S.W.3d 567, 569–70 (Tex. 2019)

(per curiam).

We construe appellate briefs “liberally, but reasonably” so that the right to

appeal is not unnecessarily lost by waiver, and we will “not dismiss an appeal for a

–2– procedural defect whenever any arguable interpretation of the rules of appellate

procedure would preserve the appeal.” See Horton, 591 S.W.3d at 569–70; Ryland

Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 665 (Tex. 2011) (per curiam)

(quoting Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). Here, however,

appellant failed to substantially comply with the rules; she flagrantly violated the

briefing requirements, and her violations prevent us from resolving the merits of the

appeal. Accordingly, we dismiss this appeal. See TEX. R. APP. P. 38.8 (a)(1);

42.2(b), (c); Bolling v. Farmer’s Branch I.S.D., 315 S.W.3d 893, 897 (Tex. App—

Dallas 2010, no pet.).

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

220138F.P05

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

LEAH BUTTERWORTH, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-22-00138-CV V. Trial Court Cause No. DC-21-09864. Opinion delivered by Justice LIVING ASSISTANCE SERVICES, Goldstein. Justices Myers and INC. AND VERSA SALES, LLC Carlyle participating. D/B/A VISITING ANGELS, Appellees

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellees LIVING ASSISTANCE SERVICES, INC. AND VERSA SALES, LLC D/B/A VISITING ANGELS recover their costs of this appeal from appellant LEAH BUTTERWORTH.

Judgment entered August 29, 2022

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