Walter S. Mitchell III v. Dallas County ( 2014 )

DISMISS; and Opinion Filed December 18, 2014.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-12-01554-CV
WALTER S. MITCHELL III, Appellant
V.
DALLAS COUNTY, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 10-02171
MEMORANDUM OPINION
Before Justices O’Neill, Lang-Miers, and Brown
Opinion by Justice O’Neill
Pro se appellant Walter S. Mitchell III appeals the trial court’s judgment denying his bill
of review. The Court previously determined that appellant’s brief was deficient and instructed
him to file an amended brief that complies with the Texas Rules of Appellate Procedure. Our
notice to appellant stated that the failure to file an amended brief that complied with the Texas
Rules of Appellate Procedure could result in dismissal of his appeal without further notice from
the Court. On March 28, 2013, we ordered appellant to file a corrected brief within thirty days.
Appellant did not file an amended brief. 1 Because appellant’s brief does not comply with long-
established briefing rules, we dismiss his appeal.
1
Appellee has not filed a brief. See TEX. R. APP. P. 38.6(b). Instead, appellee requested by letter that we dismiss the appeal, noting
appellant’s failure to file a corrected brief and the pending date for submission of the case.
BACKGROUND AND APPLICABLE LAW
Appellee and others obtained a judgment against appellant in a suit to recover delinquent
taxes. Appellant sought a bill of review in the trial court to vacate the judgment and to declare
void any liens against his property. After a hearing, the trial court denied the bill of review and
made findings of fact and conclusions of law. Representing himself, appellant appealed and filed
an appellant’s brief.
Parties to civil litigation in Texas may represent themselves at trial or on appeal. TEX. R.
CIV. P. 7; Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas
2010, no pet.). The right of self-representation carries with it the responsibility to comply with
our rules of procedure and evidence, including the rules of appellate procedure if the parties
choose to represent themselves at the appellate level. Bolling, 315 S.W.3d at 895; see Mansfield
State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
Rule 38.1 of the rules of appellate procedure requires an appellant to state concisely the
complaint he may have, provide understandable, succinct, and clear argument for why the
complaint has merit in fact and in law, and cite and apply law that is applicable to the complaint
being made along with record references that are appropriate. TEX. R. APP. P. 38.1(f)–(i). Only
when we are provided with proper briefing may we discharge our responsibility to review the
appeal and make a decision that disposes of the appeal one way or the other. We are not
responsible for identifying possible trial court error. Bolling, 315 S.W.3d at 895. Were we to
search the record for facts favorable to a party’s position or to do legal research that might
support a party’s contention, even for a litigant untrained in the law, we would be abandoning
our role as judges to become an advocate for that party. Id.
As we explained in Bolling, we do not adhere to any rigid rules about the form of a brief
when deciding whether an appellant’s brief is deficient. Id. We do, however, examine briefs for
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compliance with the briefing rules. We examine every brief closely. If we can conclude that a
brief complies with the Texas Rules of Appellate Procedure, we submit the appeal for review and
a decision on the merits. If we cannot, we may dismiss the appeal as we are authorized to do by
our appellate rules. TEX. R. APP. P. 42.3; see Bolling, 315 S.W.3d at 895–96.
DISCUSSION
In this case, Mitchell filed a deficient brief. The clerk of the court sent Mitchell written
notice that his appellant’s brief was deficient for, among other things, (1) failure to concisely
state all issues or points presented for review; (2) failure to contain a concise statement of facts
supported by record references; and (3) failure of the argument to contain appropriate citations
to the record. See TEX. R. APP. P. 38.1(f), (g), (i). The March 21, 2013 notice informed
appellant that failure to file an amended brief that complied with the Texas Rules of Appellate
Procedure within ten days may result in dismissal of the appeal without further notice. By order
dated March 28, 2013, appellant was ordered to file a corrected brief within 30 days, giving him
additional time to comply. Appellant failed to file an amended brief and did not otherwise
respond.
CONCLUSION
Because appellant has failed to comply with the briefing rules contained in the rules of
appellate procedure after having been given the opportunity to do so, we dismiss this appeal.
TEX. R. APP. P. 38.8(a)(1); 38.9(a).
/Michael J. O'Neill/
MICHAEL J. O’NEILL
JUSTICE
121554F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WALTER S. MITCHELL III, Appellant On Appeal from the 193rd Judicial District
Court, Dallas County, Texas
No. 05-12-01554-CV V. Trial Court Cause No. 10-02171.
Opinion delivered by Justice O’Neill,
DALLAS COUNTY, Appellee Justices Lang-Miers and Brown
participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee Dallas County recover its costs of this appeal from
appellant WALTER S. MITCHELL III.
Judgment entered this 18th day of December, 2014.
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