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Kemp v. Santander Consumer USA Inc.

Court of Appeals of Texas, Fourth District, San Antonio

April 25, 2018

Jasmine KEMP dba World Wide Automotive and Paint, Appellant
v.
SANTANDER CONSUMER USA INC., Appellee

          From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-08203 Honorable Charles E. Montemayor, Judge Presiding

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

          MEMORANDUM OPINION

          PER CURIAM

         Appellant Jasmine Kemp dba World Wide Automotive Repair and Paint appeals from a default judgment taken against him by Appellee Santander Consumer USA Inc. for vehicles it financed for purchase by Sheldon Franklin. Appellant, who is not an attorney, is representing himself in this appeal.

         Because Appellant twice failed to file a brief that complies with the Texas Rules of Appellate Procedure, we dismiss this appeal for want of prosecution.

         Appellant's First Brief

         On March 19, 2018, Appellant Jasmine Kemp, representing himself, filed a ten-page "Court Brief." The first page consisted of the style, a one-sentence request for oral argument, and two paragraphs of text. The two paragraphs asserted facts that purport to show that Appellee defaulted on a previous settlement agreement. The remaining nine pages were copies of the first page of nine separate orders for writ of sequestration-each writ addressing a separate vehicle.

         On March 27, 2018, we advised Appellant that his brief did not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1. We notified Appellant that his brief did not include the following: 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 complies with the Rules). See id.

         We also advised Appellant that his brief had these additional defects. No part of the brief contained any citations to the record. Contra id. R. 38.1(g) ("The statement [of facts] must be supported by record references."); id. R. 38.1(i) ("The brief must contain . . . appropriate citations . . . to the record."). The two paragraphs of the brief that could be construed as a statement of facts recited alleged facts and complaints, but the brief did not state how the trial court erred or on what legal basis this court should reverse the trial court's judgment. Contra id. ("The brief must contain a clear and concise argument for the contentions made . . . ."). The brief did not recite the standard of review; it did not contain an index of authorities, and it did not contain any citations to rules or statutes, or any references to case law. Contra id. (requiring "appropriate citations to authorities").

         We further advised Appellant that, with respect to the attached first pages of the nine writ of sequestration orders, "[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 that the defects we identified to Appellant constituted flagrant violations of Rule 38. We struck Appellant's brief and ordered him to file an amended brief not later than April 6, 2018. See Tex. R. App. P. 38.9(a). We warned Appellant that his amended brief must correct all the violations listed in our March 27, 2018 order and fully comply with the applicable rules. See, e.g., id. R. 9.4, 9.5, 38.1. We warned Appellant that if his amended brief did not comply with our order, we could "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) (authorizing this court to dismiss an appeal if an appellant fails to timely file a brief).

         Appellant's Amended Brief

         On April 4, 2018, Appellant filed a "Brief of Appellant" which we construe as an amended brief. The amended brief does not comply with Rule 38.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1.

         The nineteen-page brief begins with three pages: a cover page, a page identifying the parties and counsel, and a table of contents-without page numbers. The next six pages consist of the following-one page each: a three-sentence Introduction; a two-sentence Background; a two-sentence Statement of the Case; a two-sentence Issues Presented; a two-sentence ...


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