Robert Layton, Doing Business as Layton Welding v. Lavaca County

                        NUMBER 13-20-00128-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


ROBERT LAYTON D/B/A
LAYTON WELDING,                                                          Appellant,

                                            v.

LAVACA COUNTY AND
HALLETTSVILLE INDEPENDENT
SCHOOL DISTRICT,                                                        Appellees.


                   On appeal from the 25th District Court
                        of Lavaca County, Texas.



                      MEMORANDUM OPINION
            Before Justices Benavides, Longoria, and Tijerina
                Memorandum Opinion by Justice Tijerina

      Appellant Robert Layton, doing business as Layton Welding, filed a pro se notice

of appeal regarding a final judgment rendered against him and in favor of appellees
Lavaca County and Hallettsville Independent School District in a suit regarding the

recovery of delinquent ad valorem taxes. See TEX. TAX CODE ANN. § 33.41 (providing that

a taxing unit may file suit in a court of competent jurisdiction to foreclose the lien securing

payment or to enforce personal liability “at any time after its tax on property becomes

delinquent”). We dismiss the appeal for want of prosecution.

                                       I. BACKGROUND

         On February 5, 2020, the trial court signed the final judgment awarding appellees

delinquent taxes of $6,072.27, accrued penalties, interest, attorney’s fees, and costs. On

March 31, 2020, the clerk’s record was filed. On April 6, 2020, the reporter’s record was

filed.

         On May 11, 2020, appellant provided the Court with an untimely brief which failed

to comply with the appellate rules because it failed to contain a certificate of compliance

and the appendix was filed as a separate document. See, e.g., TEX. R. APP. P. 9.4(i)(3);

id. R. 38.1(k). By letter issued on July 7, 2020, the Clerk of the Court informed appellant

of these deficiencies and requested that he file a motion for leave to file the brief and an

amended brief within five days. On May 24, 2020, appellees filed a brief asserting, inter

alia, that appellant’s brief was fatally flawed and presented nothing for review.

         On September 14, 2020, appellant provided the Court with a defective first

amended brief and a defective motion for leave to file the brief. Appellant did not include

an appendix with his brief. On September 15, 2020, the Clerk informed appellant that his

first amended brief had been marked received, pending a ruling on his motion for leave,

and because the amended brief failed to comply with Texas Rules of Appellate Procedure

9.1(b)(c), 9.4(d), 9.4(h), 9.4(i)(3), 9.5, and 38.1(b),(g),(i),(k). The Clerk requested



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appellant to file a second amended brief within ten days. The Clerk also informed

appellant that his motion for leave was defective because it failed to comply with Rules

9.1(b),(c) and 9.5(e), and requested appellant to submit an amended motion within two

days. Appellant did not respond to either of the Clerk’s directives.

       On October 27, 2020, the Clerk again advised appellant that his first amended brief

failed to comply with Rules 9.1(b),(c), 9.4(d), 9.4(h), 9.4 (i)(3), 9.5, and 38.1(b),(g),(i),(k),

and directed him to file a second amended brief that complied with these rules within ten

days. The Clerk informed appellant that if he filed another non-compliant brief, the Court

might strike the brief, prohibit appellant from filing another, and proceed as if appellant

had failed to file a brief, under which circumstances the Court might affirm the judgment

or dismiss the appeal. See id. R. 38.9(a), 42.3(b),(c). Appellant failed to file a second

amended brief, a motion for leave, a motion for extension of time, or otherwise respond

to the Court’s directive.

       On January 8, 2020, the appellees filed a motion to dismiss this appeal for want of

prosecution. They assert that appellant has neither filed a brief that complies with the

appellate rules nor complied with directives from this Court.

                                      II. APPLICABLE LAW

       We are to construe the Texas Rules of Appellate Procedure reasonably, yet

liberally, so that the right to appeal is not lost by imposing requirements not absolutely

necessary to effectuate the purpose of a rule. Republic Underwriters Ins. Co. v. Mex-Tex,

Inc., 150 S.W.3d 423, 427 (Tex. 2004); Verburgt v. Dorner, 959 S.W.2d 615, 616–17

(Tex. 1997); Jardon v. Pfister, 593 S.W.3d 810, 820 (Tex. App.—El Paso 2019, no pet.).

Nevertheless, the Court has the authority to dismiss an appeal for want of prosecution or



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because the appellant has failed to comply with a requirement of the appellate rules, a

court order, or a notice from the clerk requiring a response or other action within a

specified time. See TEX. R. APP. P. 42.3(b),(c); Smith v. DC Civil Constr., LLC, 521 S.W.3d

75, 76 (Tex. App.—San Antonio 2017, no pet.).

       The Texas Rules of Appellate Procedure control the required contents and

organization for an appellant’s brief. See TEX. R. APP. P. 38.1. An appellate brief is “meant

to acquaint the court with the issues in a case and to present argument that will enable

the court to decide the case . . . .” Id. R. 38.9. Therefore, an appellant’s brief must contain

“a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” Id. R. 38.1(i). This requirement is not satisfied by merely

uttering brief conclusory statements unsupported by legal citations. Sweed v. City of El

Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no pet.). A brief must explain how

the law that is cited is applicable to the facts of the case. See Hernandez v. Hernandez,

318 S.W.3d 464, 466 (Tex. App.—El Paso 2010, no pet.); San Saba Energy, L.P. v.

Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Plummer

v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet. denied); Nguyen v.

Kosnoski, 93 S.W.3d 186, 188 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

       It is the appellant’s burden to discuss his assertions of error, and “we have no

duty—or even right—to perform an independent review of the record and applicable law

to determine whether there was error.” Hernandez, 318 S.W.3d at 466. When an

appellant’s brief fails to contain a clear and concise argument for the contentions made

with appropriate citations to authorities, the appellate court is not responsible for doing

the legal research that might support a party’s contentions. Bolling v. Farmers Branch



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Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.). If we were to

do so, we would be abandoning our role as judges and assuming the role of advocate for

that party. Id.

       The rules expressly require us to construe briefing rules liberally. See TEX. R. APP.

P. 38.9. Accordingly, appellate briefs are to be construed reasonably so as to preserve

the right to appellate review. El Paso Nat. Gas v. Minco Oil & Gas, Inc., 8 S.W.3d 309,

316 (Tex. 1999). Nevertheless, litigants are required to substantially comply with the

appellate rules. See TEX. R. APP. P. 38.9; Harkins v. Dever Nursing Home, 999 S.W.2d

571, 573 (Tex. App.—Houston [14th Dist.], 1999, no pet.). In this regard, pro se litigants

are held to the same standards as licensed attorneys, and they must similarly comply with

all applicable rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–

85 (Tex. 1978); Smale v. Williams, 590 S.W.3d 633, 639 (Tex. App.—Texarkana 2019,

no pet.); Smith, 521 S.W.3d at 76; Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—

El Paso 2007, no pet.).

       If an appellate court determines that the briefing rules have been flagrantly

violated, it may require a brief to be amended, supplemented, or redrawn. TEX. R. APP. P.

38.9(a); see id. R. 44.3 (“A court of appeals must not affirm or reverse a judgment or

dismiss an appeal for formal defects or irregularities in appellate procedure without

allowing a reasonable time to correct or amend the defects or irregularities.”). An

appellant is provided with a reasonable time to amend his or her brief under these

circumstances. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284

(Tex. 1994). If the appellant files another brief that does not comply with the rules of

appellate procedure, the appellate court may strike the brief, prohibit the party from filing



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another, and proceed as if the party had failed to file a brief. See TEX. R. APP. P. 38.9(a).

Pursuant to Texas Rule of Appellate Procedure 38.8(a), where an appellant has failed to

file a brief, the appellate court may dismiss the appeal for want of prosecution. See id. R.

38.8(a); Attaway v. Clark, 391 S.W.3d 647 (Tex. App.—Dallas 2013, no pet.).

                                        III. ANALYSIS

       In the instant case, appellant filed a brief and a first amended brief that did not

meet the requirements of the appellate rules. See generally TEX. R. APP. P. 9.4, 38.1.

Appellant’s table of contents fails to indicate the subject matter of each issue or point, or

group of issues or points; his statement of facts includes argument and does not include

record references; his brief fails to contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and the record; and his brief

fails to include an appropriate appendix. See id. R. 38.1(b),(g),(i),(k). In fact, appellant’s

brief fails to contain any citations to the appellate record. See id. R. 38.1(d),(g),(i).

Appellees assert that appellant’s brief does not present any issue for review and that

appellant has waived his appellate complaints.

       Appellant has been provided with the opportunity to correct these defects but has

failed to do so, and more than a reasonable time has passed. See id. R. 42.3(b); id. R.

44.3; Fredonia State Bank, 881 S.W.2d at 284. In short, appellant has failed to comply

with the appellate rules or respond to the directives of the Clerk regarding filing a second

amended brief or correcting his defective motion. See TEX. R. APP. P. 42.3(c).

                                      IV. CONCLUSION

       Based on the foregoing, we deny appellant’s motion for leave, strike appellant’s

non-conforming brief, prohibit appellant from filing another, and proceed as if appellant



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had failed to file a brief. See id. R. 38.9(a). We grant the appellees’ motion to dismiss the

appeal. We dismiss this appeal for want of prosecution and because the appellant failed

to comply with the requirements of the appellate rules and directives from the Clerk. See

id. R. 38.8(a); id. R. 38.9(a); id. R. 42.3(b),(c); Johnson v. Dallas Hous. Auth., 179 S.W.3d

770, 770 (Tex. App.—Dallas 2005, no pet.).


                                                                JAIME TIJERNA
                                                                Justice

Delivered and filed on the
21st day of January, 2021.




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