Lequita Smith and All Occupants v. Compass Bank

• Court: Court of Appeals of Texas
• Decided: July 9, 2009
• Docket: 02-08-00384-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-08-384-CV

LEQUITA SMITH AND ALL APPELLANTS OCCUPANTS

V.

COMPASS BANK APPELLEE

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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

MEMORANDUM OPINION 1

On April 15, 2009, appellants, acting pro se, filed their brief with this

court. On April 16, 2009, we notified appellants that their brief was defective

in substance and form, specifically listing the ways in which their brief did not

comply with the rules of appellate procedure. See Tex. R. App. P. 6.3, 38.1(c),

(d), (f)–(i). We also stated that failure to file an amended brief complying with

the rules on or before April 27, 2009 could result in our striking the

1 … See Tex. R. App. P. 47.4. noncompliant brief, waiver of any nonconforming points, or dismissal of the

appeal. See Tex. R. App. P. 38.8(a), 38.9(a), 42.3. Appellants filed a motion

requesting three additional days to complete the brief, which this court granted,

but then appellants failed to file an amended brief.

Rule 38.9 provides that “substantial compliance” with the briefing rules

is required, subject to exceptions. Tex. R. App. P. 38.9. First, if the court

determines that the briefing rules have been flagrantly violated as to form, the

court may require a party to amend, supplement, or redraw a brief. Id. 38.9(a).

If a party files another brief that does not comply, the court may strike the

brief, prohibit the party from filing another, and proceed as if the party did not

file a brief. Id.

It is an appellant’s burden to discuss his or her assertions of error. See

Canton-Carter v. Baylor College of Med., 271 S.W.3d 928, 930 (Tex.

App.—Houston [14th Dist.] 2008, pet. filed). An appellate court has no duty,

or even the right, to perform an independent review of the record and applicable

law to determine whether there was error. Id. Moreover, in addition to a

concise statement of all issues presented for review, an appellant’s brief must

also contain a clear and concise argument that includes appropriate citations to

legal authority and the appellate record. Id. at 931.

2 Here, although appellants’ brief is lengthy and extensive, no issues are

presented. Instead, in two locations of appellants’ brief, they state (1) “Please

let the Defendant prove when this property was re-posted for wrongful

foreclosure after the temporary restraining order was signed,” and (2) “Prove

where Defendant had permission from the County Court of Law to go to J P

Court and get an order for Forcible Entry when the hearing had not been

scheduled yet for trial.” Examining the entirety of appellants’ brief, however,

we are unable to discern any complaint about any alleged trial court error. And

appellants’ two statements labeled as “Arguments” fail to cite legal authority,

to cite to the appellate record, and to provide any substantive analysis.

Accordingly, because this court informed appellants of the substantial

defects in their brief and because appellants failed to file an amended brief

curing those defects, we strike appellants’ brief and dismiss the appeal for want

of prosecution. See Tex. R. App. P. 38.8(a)(1), 38.9(a), 42.3(c); Newman v.

Clark, 113 S.W .3d 622, 623 (Tex. App.—Dallas 2003, no pet.); see also

Canton-Carter, 271 S.W.3d at 931 (determining that appellant’s issues on

appeal did not meet the requirements of Texas Rule of Appellate Procedure 38

because they do not point out any error allegedly committed by the trial court

3 or even attack the merits of the trial court’s judgment, nor did appellant’s

arguments cite legal authority or provide substantive analysis).2

PER CURIAM

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: July 9, 2009

2 … Our dismissal of appellants’ appeal makes appellants’ pending motion regarding the docketing statement moot.