Samuel Arbuckle v. Janice Lutz ( 2007 )

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-223-CV

SAMUEL ARBUCKLE APPELLANT

V.

JANICE LUTZ APPELLEE

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FROM THE 271ST DISTRICT COURT OF WISE COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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On September 18, 2007, appellant Samuel Arbuckle, acting pro se, tendered his brief to this court.  We notified Arbuckle that the brief is defective in substance and form, specifically listing the ways in which the brief does not comply with the rules of appellate procedure.   See Tex. R. App. P. 38.1(a), (d), (f), (h), (j); 42.3.  We also stated that failure to file an amended brief complying with the rules by September 28, 2007, could result in the striking of the noncompliant brief, waiver of nonconforming points, or dismissal of the appeal.   See Tex. R. App. P. 38.8(a), 38.9(a), 42.3.  Arbuckle has not filed an amended brief, nor has he responded to our letter.

Rule 38.9 provides that “substantial compliance” with the briefing rules is required, subject to exceptions.   Tex. R. App. P . 38.9.  First, if the court determines that the briefing rules have been flagrantly violated as to form, the court may require the appellant to amend, supplement, or redraw his brief.   Tex. R. App. P . 38.9(a).  If the appellant files another brief that does not comply, the court may strike the brief, prohibit the party from filing another, and proceed as if the party did not file a brief.   Id.

Accordingly, because this court informed Arbuckle of the substantial defects in his brief but he failed to file an amended brief curing those defects, we strike Arbuckle’s brief and dismiss the appeal.   See Tex. R. App. P . 38.8(a)(1), 38.9(a), 42.3(c); Newman v. Clark , 113 S.W.3d 622, 623 (Tex. App.—Dallas 2003, no pet.).

PER CURIAM

PANEL D: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON, J.

LIVINGSTON, J. dissents without opinion.

DELIVERED: November 15, 2007

FOOTNOTES

1:

See Tex. R. App. P. 47.4.