Rose Patricia Ann Shields, Oscar Urbina, Arnold Shields, Individually, D/B/A Galveston Service Company, D/B/A Blu Shields Construction v. Commercial State Bank, Douglas Faver, Suzanne Hubbard, Daniel Jurgena, Roxanne Tomolialo, Joseph Cox, Thomas Walsh and Gina F. Dominique ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF PROSECUTION
Appellate case name: Rose Patricia Ann Shields, Oscar Urbina, and Arnold Shields,
Individually, d/b/a Galveston Service Company, d/b/a Blu
Shields Construction v. Commercial State Bank, Douglas
Faver, Suzanne Hubbard, Daniel Jurgena, Roxanne
Tomolialo, Joseph Cox, Thomas Walsh and Gina F.
Dominique
Appellate case number: 01-16-00643-CV
Trial court case number: 2015-06750
Trial court: 129th District Court of Harris County
This Court’s April 18, 2017 Order, among other things, struck appellants’ brief for
non-compliance with the page limit and briefing rules, under Rules 9.4 and 38.1, and
ordered an amended brief to be filed within 30 days of that Order. See TEX. R. APP. P.
9.4(i)(2)(B), (4); 38.1. On May 18, 2017, appellants, Arnold “Blu” Shields, Individually,
d/b/a Galveston Service Company, d/b/a Blu Shields Construction, Rose Patricia Ann
Shields, and Oscar Urbina, filed an amended 86-page pro se brief.
Absent a motion to exceed the word limit, which was not filed here, the
appellants’ initial brief is limited to 15,000 words if computer-generated, and 50 pages if
not, and the aggregate of all briefs filed by a party must not exceed 27,000 words if
computer-generated, and 90 pages if not. See TEX. R. APP. P. 9.4(i)(2)(B), (4). After a
review of this brief, while the certificate of compliance states that appellants’ brief
contains 2,622 words, it totals 87 pages because it again contains various documents from
the record interspersed in the brief, instead of in a separate appendix or after the brief,
making it difficult to tell where the brief’s arguments end and the record begins. See id.
9.4(h), (i)(2)(B), (3). Thus, this amended brief exceeds the total page limit.
Accordingly, the Court sua sponte STRIKES this amended brief because it does
not comply with Texas Rules of Appellate Procedure 9.4 and 38.1. See TEX. R. APP. P.
9.4(i)(2)(B), 38.1(a)-(k), 38.9(a). The Court ORDERS the brief redrawn to conform with
Rule 9.4, with page numbers at the bottom, 15,000 words or less if computer-generated,
or 50 pages or less if not, with a corrected certificate of compliance. See TEX. R. APP. P.
9.4(i)(2)(B), (3). Specifically, the second amended brief also should comply with Rule
38.1 by containing the following sections, in the following order or otherwise:
(1) a list of all the parties to the trial court’s judgment and addresses of all trial
and appellate counsel;
(2) a table of contents;
(3) an index of authorities;
(4) a brief statement of the case with references to the appellate record;
(5) a statement regarding oral argument, with any request on the front
cover of the brief;
(6) a list of the issues presented for appeal;
(7) a statement of facts supported by record references;
(8) a summary of the argument;
(9) a clear and concise argument for the contentions made with appropriate
citations to legal authorities and the clerk’s record;
(10) a short conclusion clearly stating the nature of the relief sought; and
(11) an appendix, if necessary.
TEX. R. APP. P. 38.1(a)-(k).
The second amended brief must conform with Rule 38.1 by including the sections
above and containing all necessary references to the clerk’s record filed with this Court or
legal authorities. See TEX. R. APP. P. 38.1(a)-(k), 38.7, 38.9(a). If necessary, appellants
may also file a separate appendix with any relevant documents, and the appendix and
section headings above are not included in the word count for the certificate of
compliance for the second amended brief. See id. 9.4(i)(1), (3), 38.1(k).
Thus, if appellants file a second amended brief that does not comply with Rule
38.1, as set forth above, and with a separate appendix, the Court may strike the redrawn
brief again, prohibit appellants from filing another brief, and proceed as if appellants had
failed to file a brief, i.e., dismiss the appeal for want of prosecution. See TEX. R. APP. P.
38.1, 38.8(a), 38.9(a). A compliant second amended brief must be filed within 30 days
from the date of this order or this Court may dismiss this appeal for want of prosecution
without further notice. See id. 42.3(b), (c).
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley

Date: May 25, 2017