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Gardner v. Gardner

Court of Appeals of Texas, Fourth District, San Antonio

January 24, 2018

Sylvia GARDNER, Appellant
v.
Eric GARDNER, Appellee

          From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-00678 Honorable David A. Canales, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          PER CURIAM

         This appeal arises from the trial court's June 14, 2017 final decree of divorce dividing the marital property between Appellant Sylvia Gardner and Appellee Eric Gardner. Because Appellant, who is representing herself on appeal, has twice failed to file a brief that complies with the Texas Rules of Appellate Procedure, we dismiss this appeal for want of prosecution.

         Appellant filed her original brief on December 15, 2017; the brief failed to comply with the appellate rules. The brief consisted of a fifteen-page document and a binder. The binder was a 2½ inch, three-ring binder filled with personal documents, photographs, receipts, and the like. The binder was not prepared by the clerk or the reporter; there is no indication the binder's contents were filed in the trial court. The binder appeared to be an appendix to Appellant's original brief.

         On December 20, 2017, we advised Appellant that her brief did not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1. Specifically, the brief did not include Identity of Parties and Counsel, Table of Contents, Index of Authorities, Statement of the Case, Issues Presented, Statement of Facts, Summary of the Argument, Argument, Prayer, or an Appendix that complied with the Rules. See id. Further, no part of the brief contained any citations to the record. Contra id. R. 38.1(i), (g). The great majority of the brief recited alleged facts and complaints, but the brief offered only a few sentences that might be construed to present a legal argument describing how the trial court erred and why this court should reverse the trial court's judgment. Contra id. The brief did not recite the standard of review; it did not contain an index of authorities, and it contained no citations to any legal authorities. Contra id.

         We advised Appellant that, with respect to her binder, "[t]he attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and, therefore, the documents cannot be considered." Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.-Houston [14th Dist.] 2005, no pet.); accord Mauldin v. Clements, 428 S.W.3d 247, 262 n.3 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (noting that "documents attached to briefs are not part of the record of the case and cannot be considered").

         We concluded the brief failed to comply with Rule 38, and we struck Appellant's original brief. See id. R. 38.9(a). We ordered Appellant to file an amended brief that corrected all of the errors listed and fully complied with the applicable rules. See, e.g., id. R. 9.4, 9.5, 38.1. We warned Appellant that if the amended brief did not comply with our order, we "may strike the brief, prohibit [Appellant] from filing another, and proceed as if [Appellant] had failed to file a brief." See id. R. 38.9(a); see also id. R. 38.8(a).

          On January 4, 2018, Appellant filed a first amended brief, and the next day, filed a second amended brief.[1] Her second amended brief consisted of 274 pages: fourteen pages for her brief and 260 pages as an appendix. The amended brief does not comply with Rules 9.4 and 38.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 9.4, 38.1.

         Specifically, the brief contains most of the appropriate section headings, but the required substance is missing. For example, the Table of Authorities identifies procedural points in the underlying suit instead of listing legal authorities such as statutes, rules, and cases. Contra id. R. 38.1(c). The Statement of Facts recites alleged facts without any citations to the appellate record. Contra id. R. 38.1(g). The Argument section consists of three one-sentence paragraphs; none contains any citations to authorities or to the record. Contra id. R. 38.1(i).

         Appellant's brief does not list a single statute, rule, or case; it does not contain a single citation to the appellate record; and it does not present any legal issue supported by argument for this court to review. Contra id. R. 38.1. The brief is wholly inadequate to present any questions for appellate review. See Ruiz v. State, 293 S.W.3d 685, 693 (Tex. App.-San Antonio 2009, pet. ref'd); Robert L. Crill, Inc. v. Bond, 76 S.W.3d 411, 423 (Tex. App.-Dallas 2001, pet. denied).

         We necessarily conclude Appellant's second amended brief fails to comply with the Texas Rules of Appellate Procedure or our December 20, 2017 order. See Tex. R. App. P. 42.3. As we warned Appellant we would do if her amended brief did not comply with the Rules and our December 20, 2017 order, we strike Appellant's second amended brief, prohibit her from filing another brief in this appeal, and dismiss this appeal for want of prosecution. See Tex. R. App. P. 9.4(i)(2), 38.8(a)(1), 38.9(a), 42.3(b).

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