E.W. "Bill" Barrick D/B/A Barrick Enterprises And D/B/A Barrick Insurance Agency v. Washington Mutual ( 2007 )

Affirmed and Memorandum Opinion filed April 26, 2007

Affirmed and Memorandum Opinion filed April 26, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01220-CV

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E.W. ABILL@ BARRICK; d/b/a BARRICK ENTERPRISES; and d/b/a BARRICK INSURANCE AGENCY, Appellant

V.

WASHINGTON MUTUAL, Appellee

On Appeal from the 281^st District Court

Harris County, Texas

Trial Court Cause No. 2004-04722

M E M O R A N D U M  O P I N I O N

Appellant, E.W. ABill@ Barrick, doing business as Barrick Enterprises and Barrick Insurance Agency (collectively ABarrick@), sued appellee, Washington Mutual, when Washington Mutual put a hold on his accounts.  The trial court granted summary judgment in favor of Washington Mutual.  Barrick filed this appeal seeking to reverse the grant of summary judgment.  We affirm because Barrick has waived his issue due to inadequate briefing. 

On May 24, 2006, Barrick attempted to file a brief with this court.  On May 25, 2006, we returned Barrick=s brief because it did not comply with Rules 9.4(f) and 38.1 of the Texas Rules of Appellate Procedure, and ordered him to file a corrected brief 10 days from the date of the letter.  Tex. R. App. P. 9.4(f) & 38.1.  We granted Barrick two extensions to file his brief until July 14, 2006, and until August 14, 2006. 

On August 17, 2006, Barrick filed his brief along with another motion for an extension, which we granted.  We determined that this brief was also defective and, on August 31, 2006, ordered Barrick to file a corrected brief because it did not comply with Rule 38.1.  Tex. R. App. P. 38.1.  Specifically, Barrick=s brief did not contain (1) a statement of the issues presented for review, (2) a statement of facts, supported by references to the record, (3) a summary of the argument, and (4) a clear and concise argument of the contents made, with appropriate citations to the record.  Tex. R. App. P. 31.1(e), (f), (g) & (h).  We ordered Barrick to file a corrected brief on or before October 2, 1996, and stated that failure to do so would result in dismissal of his appeal for want of prosecution.  Tex. R. App. P. 42.3(b). 

We granted another motion for an extension and ordered that unless Barrick filed a corrected brief on or before October 26, 2006, we would dismiss his appeal for want of prosecution.  On October 26, 2006, we ordered Barrick=s brief filed. However, despite the opportunities and time to file a brief in compliance with the Rules of Appellate Procedure, Barrick has filed a deficient brief.

Under Rule 38.1(f), the brief Amust state concisely and without argument the facts pertinent to the issues or point presented. . . . The statement must be supported by record references.@  Tex. R. App. P. 38.1(f).  Barrick=s statement of facts contains one short (one line) sentence with a reference to the record. Although appellant=s one-sentence statement of facts is concise, it does not set out the pertinent facts.  Moreover, the record citation for this single sentence references only copies of documents without explaining the relevance of the evidence.  We can only ascertain the nature of this case by reading the record. 

With respect to the argument section of the brief under Rule 38.1(h), the brief Amust contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  The trial court granted Washington Mutual=s motion for summary judgment on unspecified grounds.  From reading Barrick=s argument section, we cannot discern any cognizable argument regarding how the trial court erred in granting summary judgment on his causes of action.  It is not our duty to craft  appellant=s argument on appeal. 

If a party files a brief that does not comply with rules, the appellate court may order it amended or redrawn.  Tex. R. App. P. 38.9(a).  If another brief that does not comply with the rules is filed, Athe court may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.@  Id.  When the appellant fails to file a brief, Rule 38.8(a) allows the court to dismiss the appeal for want of prosecution or, 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.  Tex. R. App. P. 38.8(a); Harkins v. Dever Nursing Home, 999 S.W.2d 571, 573 (Tex. App.CHouston [14th Dist.] 1999, no pet.). 

Because Barrick has not filed a brief in substantial compliance with the Texas Rules of Appellate Procedure, we regard the appellee=s brief as correctly presenting the case.  Barrick=s sole issue is overruled. 

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 26, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.