Laura Jane McCumber v. Bruce McCumber ( 2008 )

NUMBER 13-07-00641-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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LAURA JANE McCUMBER, Appellant,

v.

BRUCE McCUMBER, Appellee.

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On appeal from the County Court of Live Oak County, Texas.

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MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion Per Curiam  

Appellant, Laura Jane McCumber, pro se, appeals the trial court's judgment in a forcible detainer action. We affirm the judgment of the trial court.

Appellant's original brief in this matter was received by this Court on November 9, 2007. The Court notified appellant that her brief failed to comply with Texas Rule of Appellate Procedure 38.1 and requested that she file an amended brief. See Tex. R. App. P. 38.1. Appellant's amended brief was received by this Court on March 26, 2008. The amended brief failed generally to comply with Rules 9.4 and 38.1 of the Texas Rules of Appellate Procedure. See generally id. 9.4, 38.1. Accordingly, we directed appellant to file an amended brief that complied with these rules within ten days from the date of that notice. We informed appellant that if she 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. See id. 38.9(a).

Appellant filed a motion for extension of time to file her second amended brief, and the Court received appellant's second amended brief on May 16, 2008. The Court grants appellant's motion for extension of time and allows the untimely filing thereof; however, appellant's second amended brief also fails to substantially comply with the appellate rules. See id. Specifically, appellant's redrawn brief fails to comply with Rule 38.1, which requires that appellate briefs contain "argument for the contentions made, with appropriate citations to authorities and to the record." See id. 38.1(h). Accordingly, we strike the brief, prohibit appellant from filing another, and proceed as if appellant had failed to file a brief. See id. 38.9(a).

The rules of procedure provide that if an appellant's brief is not timely filed but "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 considering the record." See id. 38.8(a)(3). Appellee, Bruce McCumber, filed an appellee's brief in this cause on December 27, 2007. We regard that brief as correctly presenting the case. See id. We affirm the trial court's judgment upon that brief without the necessity of examining the record. See id.; Cognata v. R. W. Johnson Constr. Co., No. 13-05-234-CR, 2006 Tex. App. LEXIS 3037, *5-6 (Tex. App. Corpus Christi Apr. 13, 2006, pet. denied) (mem. op.).

The judgment of the trial court is affirmed.

PER CURIAM

Memorandum Opinion delivered

and filed this the 26th day of June, 2008.