Opinion
Appellate case number: 01-16-00643-CV
05-25-2017
Rose Patricia Ann Shields, Oscar Urbina, and Arnold Shields, Individually, d/b/a Galveston Service Company, d/b/a Blu shields construction v. commercial state Bank, Douglas Faver, suzanne Hubbard, Daniel Jurgena, Roxanne Tomolialo, Joseph Cox, Thomas Walsh and Gina F. Dominique
ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF PROSECUTION Trial court case number: 2015-06750 Trial court: 129th District Court of Harris County
This Court's April 18, 2017 Order, among other things, struck appellants' brief for non-compliance with the page limit and briefing rules, under Rules 9.4 and 38.1, and ordered an amended brief to be filed within 30 days of that Order. See TEX. R. APP. P. 9.4(i)(2)(B), (4); 38.1. On May 18, 2017, appellants, Arnold "Blu" Shields, Individually, d/b/a Galveston Service Company, d/b/a Blu Shields Construction, Rose Patricia Ann Shields, and Oscar Urbina, filed an amended 86-page pro se brief.
Absent a motion to exceed the word limit, which was not filed here, the appellants' initial brief is limited to 15,000 words if computer-generated, and 50 pages if not, and the aggregate of all briefs filed by a party must not exceed 27,000 words if computer-generated, and 90 pages if not. See TEX. R. APP. P. 9.4(i)(2)(B), (4). After a review of this brief, while the certificate of compliance states that appellants' brief contains 2,622 words, it totals 87 pages because it again contains various documents from the record interspersed in the brief, instead of in a separate appendix or after the brief, making it difficult to tell where the brief's arguments end and the record begins. See id. 9.4(h), (i)(2)(B), (3). Thus, this amended brief exceeds the total page limit.
Accordingly, the Court sua sponte STRIKES this amended brief because it does not comply with Texas Rules of Appellate Procedure 9.4 and 38.1. See TEX. R. APP. P. 9.4(i)(2)(B), 38.1(a)-(k), 38.9(a). The Court ORDERS the brief redrawn to conform with Rule 9.4, with page numbers at the bottom, 15,000 words or less if computer-generated, or 50 pages or less if not, with a corrected certificate of compliance. See TEX. R. APP. P. 9.4(i)(2)(B), (3). Specifically, the second amended brief also should comply with Rule 38.1 by containing the following sections, in the following order or otherwise:
(1) a list of all the parties to the trial court's judgment and addresses of all trial and appellate counsel;TEX. R. APP. P. 38.1(a)-(k).
(2) a table of contents;
(3) an index of authorities;
(4) a brief statement of the case with references to the appellate record;
(5) a statement regarding oral argument, with any request on the front cover of the brief;
(6) a list of the issues presented for appeal;
(7) a statement of facts supported by record references;
(8) a summary of the argument;
(9) a clear and concise argument for the contentions made with appropriate citations to legal authorities and the clerk's record;
(10) a short conclusion clearly stating the nature of the relief sought; and
(11) an appendix, if necessary.
The second amended brief must conform with Rule 38.1 by including the sections above and containing all necessary references to the clerk's record filed with this Court or legal authorities. See TEX. R. APP. P. 38.1(a)-(k), 38.7, 38.9(a). If necessary, appellants may also file a separate appendix with any relevant documents, and the appendix and section headings above are not included in the word count for the certificate of compliance for the second amended brief. See id. 9.4(i)(1), (3), 38.1(k).
Thus, if appellants file a second amended brief that does not comply with Rule 38.1, as set forth above, and with a separate appendix, the Court may strike the redrawn brief again, prohibit appellants from filing another brief, and proceed as if appellants had failed to file a brief, i.e., dismiss the appeal for want of prosecution. See TEX. R. APP. P. 38.1, 38.8(a), 38.9(a). A compliant second amended brief must be filed within 30 days from the date of this order or this Court may dismiss this appeal for want of prosecution without further notice. See id. 42.3(b), (c).
It is so ORDERED. Judge's signature: /s/ Laura Carter Higley
[×] Acting individually [ ] Acting for the Court
Date: May 25, 2017