Timothy Holz v. U.S.A. Corp.

Order entered December 30, 2013

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01241-CV

TIMOTHY HOLZ, Appellant

V.

U.S.A. CORP., ET AL., Appellee

On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-05101

ORDER
We GRANT appellant’s December 19, 2013 “motion to clarify that the brief in support

filed in court already is a pro se litigant brief” to the extent that we ORDER appellant to file his

amended brief no later than February 3, 2014. We DIRECT the Clerk of the Court to include

with this order the attached copy of rule 38 of the Texas Rules of Appellate Procedure.

/s/ ELIZABETH LANG-MIERS
JUSTICE
Rule 38. Requisites of Briefs

38.1. Appellant's Brief

The appellant’s brief must, under appropriate headings and in the order here
indicated, contain the following:

(a) Identity of Parties and Counsel. The brief must give a complete list of all parties
to the trial court's judgment or order appealed from, and the names and addresses
of all trial and appellate counsel, except as otherwise provided in Rule 9.8.

(b) Table of Contents. The brief must have a table of contents with references to
the pages of the brief. The table of contents must indicate the subject matter of
each issue or point, or group of issues or points.

(c) Index of Authorities. The brief must have an index of authorities arranged
alphabetically and indicating the pages of the brief where the authorities are cited.

(d) Statement of the Case. The brief must state concisely the nature of the case
(e.g., whether it is a suit for damages, on a note, or involving a murder
prosecution), the course of proceedings, and the trial court's disposition of the case.
The statement should be supported by record references, should seldom exceed
one-half page, and should not discuss the facts.

(e) Any Statement Regarding Oral Argument. The brief may include a statement
explaining why oral argument should or should not be permitted. Any such
statement must not exceed one page and should address how the court’s
decisional process would, or would not, be aided by oral argument. As required by
Rule 39.7, any party requesting oral argument must note that request on the front
cover of the party’s brief.

(f) Issues Presented. The brief must state concisely all issues or points presented
for review. The statement of an issue or point will be treated as covering every
subsidiary question that is fairly included.

(g) Statement of Facts. The brief must state concisely and without argument the
facts pertinent to the issues or points presented. In a civil case, the court will accept
as true the facts stated unless another party contradicts them. The statement must
be supported by record references.

(h) Summary of the Argument. The brief must contain a succinct, clear, and
accurate statement of the arguments made in the body of the brief. This summary
must not merely repeat the issues or points presented for review.

(i) Argument. The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.
 (j) Prayer. The brief must contain a short conclusion that clearly states the nature of
the relief sought.

(k) Appendix in Civil Cases.

(1) Necessary Contents. Unless voluminous or impracticable, the appendix
must contain a copy of:

(A) the trial court’s judgment or other appealable order from which relief is
sought;

(B) the jury charge and verdict, if any, or the trial court’s findings of fact
and conclusions of law, if any; and

(C) the text of any rule, regulation, ordinance, statute, constitutional
provision, or other law (excluding case law) on which the argument is
based, and the text of any contract or other document that is central to the
argument.

(2) Optional Contents. The appendix may contain any other item pertinent to
the issues or points presented for review, including copies or excerpts of
relevant court opinions, laws, documents on which the suit was based,
pleadings, excerpts from the reporter’s record, and similar material. Items
should not be included in the appendix to attempt to avoid the page limits for
the brief.

38.2. Appellee's Brief

(a) Form of Brief.

(1) An appellee's brief must conform to the requirements of Rule 38.1, except
that:

(A) the list of parties and counsel is not required unless necessary to
supplement or correct the appellant's list;

(B) the appellee’s brief need not include a statement of the case, a
statement of the issues presented, or a statement of facts, unless the
appellee is dissatisfied with that portion of the appellant's brief; and

(C) the appendix to the appellee’s brief need not contain any item already
contained in an appendix filed by the appellant.

(2) When practicable, the appellee's brief should respond to the appellant's
issues or points in the order the appellant presented those issues or points.
 (b) Cross-Points.

(1) Judgment Notwithstanding the Verdict. When the trial court renders
judgment notwithstanding the verdict on one or more questions, the appellee
must bring forward by cross-point any issue or point that would have vitiated
the verdict or that would have prevented an affirmance of the judgment if the
trial court had rendered judgment on the verdict. Failure to bring forward by
cross-point an issue or point that would vitiate the verdict or prevent an
affirmance of the judgment waives that complaint. Included in this requirement
is a point that:

(A) the verdict or one or more jury findings have insufficient evidentiary
support or are against the overwhelming preponderance of the evidence
as a matter of fact; or

(B) the verdict should be set aside because of improper argument of
counsel.

(2) When Evidentiary Hearing Needed. The appellate court must remand a
case to the trial court to take evidence if:

(A) the appellate court has sustained a point raised by the appellant; and

(B) the appellee raised a cross-point that requires the taking of additional
evidence.

38.3. Reply Brief

The appellant may file a reply brief addressing any matter in the appellee’s brief.
However, the appellate court may consider and decide the case before a reply brief is
filed.

38.4. Deleted
38.5. Appendix for Cases Recorded Electronically

In cases where the proceedings were electronically recorded, the following rules
apply:

(a) Appendix.

(1) In General. At or before the time a party's brief is due, the party must file
one copy of an appendix containing a transcription of all portions of the
recording that the party considers relevant to the appellate issues or points.
Unless another party objects, the transcription will be presumed accurate.
 (2) Repetition Not Required. A party's appendix need not repeat evidence
included in any previously filed appendix.

(3) Form. The form of the appendix and transcription must conform to any
specifications of the Supreme Court and Court of Criminal Appeals concerning
the form of the reporter’s record except that it need not have the reporter’s
certificate.

(4) Notice. At the time the appendix is filed, the party must give written notice
of the filing to all parties to the trial court's judgment or order. The notice must
specify, by referring to the index numbers in the court recorder's logs, those
parts of the recording that are included in the appendix. The filing party need
not serve a copy of the appendix but must make a copy available to all parties
for inspection and copying.

(b) Presumptions. The same presumptions that apply to a partial reporter’s record
under Rule 34.6(c)(4) apply to the parties' appendixes. The appellate court need
not review any part of the electronic recording.

(c) Supplemental Appendix. The appellate court may direct or allow a party to file a
supplemental appendix containing a transcription of additional portions of the
recording.

(d) Inability to Pay. A party who cannot pay the cost of an appendix must file the
affidavit provided for by Rule 20. The party must also state in the affidavit or a
supplemental affidavit that the party has neither the access to the equipment
necessary nor the skill necessary to prepare the appendix. If a contest to the
affidavit is not sustained by written order, the court recorder must transcribe or
have transcribed those portions of the recording that the party designates and must
file the transcription as that party's appendix, along with all exhibits.

(e) Inaccuracies.

(1) Correction by Agreement. The parties may agree to correct an inaccuracy
in the transcription of the recording.

(2) Correction by Appellate or Trial Court. If the parties dispute whether an
electronic recording or transcription accurately discloses what occurred in the
trial court but cannot agree on corrections, the appellate court may:

(A) settle the dispute by reviewing the recording; or

(B) submit the dispute to the trial court, which must — after notice and
hearing — settle the dispute and ensure that the recording or transcription
is made to conform to what occurred in the trial court.
 (f) Costs. The actual expense of preparing the appendixes or the amount
prescribed for official reporters, whichever is less, is taxed as costs. The appellate
court may disallow the cost of any portion of the appendixes that it considers
surplusage or that does not conform to any specifications prescribed by the
Supreme Court or Court of Criminal Appeals.

38.6. Time to File Briefs

(a) Appellant's Filing Date. Except in a habeas corpus or bail appeal, which is
governed by Rule 31, an appellant must file a brief within 30 days — 20 days in an
accelerated appeal — after the later of:

(1) the date the clerk’s record was filed; or

(2) the date the reporter’s record was filed.

(b) Appellee's Filing Date. The appellee's brief must be filed within 30 days — 20
days in an accelerated appeal — after the date the appellant's brief was filed. In a
civil case, if the appellant has not filed a brief as provided in this rule, an appellee
may file a brief within 30 days — 20 days in an accelerated appeal — after the date
the appellant's brief was due.

(c) Filing Date for Reply Brief. A reply brief, if any, must be filed within 20 days after
the date the appellee's brief was filed.

(d) Modifications of Filing Time. On motion complying with Rule 10.5(b), the
appellate court may extend the time for filing a brief and may postpone submission
of the case. A motion to extend the time to file a brief may be filed before or after
the date a brief is due. The court may also, in the interests of justice, shorten the
time for filing briefs and for submission of the case.

38.7. Amendment or Supplementation

A brief may be amended or supplemented whenever justice requires, on whatever
reasonable terms the court may prescribe.

38.8. Failure of Appellant to File Brief

(a) Civil Cases. If an appellant fails to timely file a brief, the appellate court may:

(1) dismiss the appeal for want of prosecution, unless the appellant reasonably
explains the failure and the appellee is not significantly injured by the
appellant's failure to timely file a brief;

(2) decline to dismiss the appeal and give further direction to the case as it
considers proper; or
 (3) if an appellee’s brief is filed, the court may regard that brief as correctly
presenting the case and may affirm the trial court's judgment upon that brief
without examining the record.

(b) Criminal Cases.

(1) Effect. An appellant's failure to timely file a brief does not authorize either
dismissal of the appeal or, except as provided in (4), consideration of the
appeal without briefs.

(2) Notice. If the appellant's brief is not timely filed, the appellate clerk must
notify counsel for the parties and the trial court of that fact. If the appellate
court does not receive a satisfactory response within ten days, the court must
order the trial court to immediately conduct a hearing to determine whether the
appellant desires to prosecute his appeal, whether the appellant is indigent, or,
if not indigent, whether retained counsel has abandoned the appeal, and to
make appropriate findings and recommendations.

(3) Hearing. In accordance with (2), the trial court must conduct any necessary
hearings, make appropriate findings and recommendations, and have a record
of the proceedings prepared, which record — including any order and findings
— must be sent to the appellate court.

(4) Appellate Court Action. Based on the trial court's record, the appellate court
may act appropriately to ensure that the appellant's rights are protected,
including initiating contempt proceedings against appellant's counsel. If the trial
court has found that the appellant no longer desires to prosecute the appeal, or
that the appellant is not indigent but has not made the necessary
arrangements for filing a brief, the appellate court may consider the appeal
without briefs, as justice may require.

38.9. Briefing Rules to be Construed Liberally

Because briefs are meant to acquaint the court with the issues in a case and to
present argument that will enable the court to decide the case, substantial compliance
with this rule is sufficient, subject to the following.

(a) Formal Defects. If the court determines that this rule has been flagrantly
violated, it may require a brief to be amended, supplemented, or redrawn. If
another brief that does not comply with this rule is filed, the court may strike the
brief, prohibit the party from filing another, and proceed as if the party had failed to
file a brief.

(b) Substantive Defects. If the court determines, either before or after submission,
that the case has not been properly presented in the briefs, or that the law and
authorities have not been properly cited in the briefs, the court may postpone
 submission, require additional briefing, and make any other order necessary for a
satisfactory submission of the case.

Notes and Comments

Comment to 1997 change: This is former Rule 74. The rule is substantially
rewritten. Paragraph 38.1(e) now specifically allows a party to either present issues or
points of error. Paragraphs 38.1(f) and (g) are new and require a brief to include a
statement of facts and summary of the argument. Paragraph 38.2(b) is new and gives
specific requirements for cross-points. See also Tex. R. Civ. P. 324(c). Subdivision 38.3
is new and provides for a reply brief. Subdivision 38.4 imposes a total brief limit of 90
pages on each party. Thus, if more than one party has filed a notice of appeal, there will
be multiple appellant’s, appellee’s, and reply briefs, but each party is limited to a total of
90 pages. Subdivision 38.5 is new and provides for an appendix in cases recorded
electronically in the trial court. Paragraph 38.6(b) now provides that the appellee has 30
— rather than 25 — days to file a brief. The provisions of former Rules 74(i) (Number of
Copies), (j) (Briefs Typewritten or Printed), and (q) (Service of Briefs) are omitted as
unnecessary. See Rule 9.

Comment to 2002 change: Rule 38.6(d) is amended to clarify that an appellate
court may postpone the filing of any brief, not just the appellant's brief.

Comment to 2008 change: A party may choose to include a statement in the brief
regarding oral argument. The optional statement does not count toward the briefing
page limit.