Alan Molnoskey v. XOG Operating, LLC ( 2015 )

NUMBER 13-15-00027-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALAN MOLNOSKEY, Appellant,
v.
XOG OPERATING, LLC, Appellee.
On appeal from the 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion Per Curiam
Appellant, Alan Molnoskey, pro se, attempts to appeal a summary judgment
rendered in favor of appellee, XOG Operating, LLC, in a suit where Molnoskey alleges
that XOG breached its contract with him to pay royalties pursuant to an oil and gas lease.
We dismiss the appeal for want of prosecution.
I. BACKGROUND
Appellant's brief in the above cause was received by the Court on May 8, 2015.
On May 12, 2015, the Clerk of this Court notified appellant that his brief failed generally
to comply with the Texas Rules of Appellate Procedure. See generally TEX. R. APP. P.
38.1. Specifically, the brief did not contain an index of authorities arranged alphabetically
and indicating the pages of the brief where the authorities are cited as required by Rule
38.1(c); the statement of facts was not supported by record references as required by
Rule 38.1(g); and the argument did not contain appropriate citations to the authorities and
to the record as required by Rule 38.1(i). Accordingly, we directed appellant to file an
amended brief that complies with these rules within 15 days and notified appellant that if
another brief that did not comply was received by the Court, the Court may strike the brief,
prohibit appellant from filing another, and proceed as if appellant had failed to file a brief,
under which circumstances the Court may dismiss the appeal. See id. 38.9(a), 42.3(b),
(c).
Appellant's amended brief was received by the Court on May 22, 2015. The
amended brief continued to fail to comply with TEX. R. APP. P. 38.1(c). The brief did not
contain an index of authorities arranged alphabetically and indicating the pages of the
brief where the authorities are cited. Accordingly, we again directed appellant to file an
amended brief that complies with this rule within 15 days from the date of this notice, and
again notified appellant that if another brief that did not comply was received by the Court,
the Court may strike the brief, prohibit appellant from filing another, and proceed as if
2
appellant had failed to file a brief, under which circumstances the Court may affirm the
judgment or dismiss the appeal. See id 38.9(a), 42.3 (b),(c).
Appellant’s second amended brief was received on June 9, 2015. The brief lacks
any citation to authorities or an index of authorities.
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–
617 (Tex. 1997). 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.).
Pro se litigants are held to the same standards as licensed attorneys, and they
must therefore comply with all applicable rules of procedure. Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.
App.—El Paso 2007, no pet.). A pro se litigant is required to properly present his case
to both the trial and appellate courts. Valadez, 238 S.W.3d at 845. Otherwise, pro se
litigants would benefit from an unfair advantage over those parties who are represented
3
by counsel. See id. Therefore, we do not make allowances or apply different standards
when a case is presented by a litigant acting without the advice of counsel. See id.
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. Hernandez v.
Hernandez, 318 S.W.3d 464, 466 (Tex. App.—El Paso 2010); 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; see 2218 Bryan Street, Ltd.
v. City of Dallas, 175 S.W.3d 58, (Tex. App.—Dallas 2005, pet. denied). 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
4
Indep. School 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.
If the 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 reasonable time is given to an appellant when he is
provided with an opportunity to amend his brief. See Fredonia State Bank v. General
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 another, and proceed as if the party had failed to
file a brief. 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. Id. R. 38.8(a).
III. ANALYSIS
In the instant case, appellant filed a brief that did not meet the requirements of the
appellate rules. The Clerk of this Court notified appellant and gave him two reasonable
opportunities to amend his brief. The second amended brief provided by appellant also
fails to meet the requirements of the appellate rules. Specifically, appellant’s redrawn
brief fails to comply with Rule 38.1, which requires that appellate briefs contain an index
of authorities and “argument for the contentions made, with appropriate citations to
authorities and to the record.” See id. 38.1(h). We note that appellant contends that
XOG’s motion for summary judgment should have been denied because there was a
5
genuine issue of material fact regarding whether there was production on the lease;
however, the second amended brief provided by appellant includes record citations but
fails to include an index of authorities or any legal authority supporting his argument.
IV. CONCLUSION
We strike appellant’s non-conforming brief, prohibit appellant from filing another,
and proceed as if appellant had failed to file a brief. See id. 38.9(a). We order the
appeal dismissed for want of prosecution. See id. R. 38.8(a), 38.9(a), 42.3(b)(c);
Johnson v. Dallas Hous. Auth., 179 S.W.3d 770, 770 (Tex. App.—Dallas 2005, no pet.).
It is so ORDERED.
PER CURIAM
Delivered and filed the
18th day of June, 2015.
6