B&V Landscaping v. Roscoe Robert Harvey, Nancy Joyce Harvey and Harvey R&N Trust ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
November 28, 2022
No. 04-22-00400-CV
B&V LANDSCAPING,
Appellant
v.
Roscoe Robert HARVEY, Nancy Joyce Harvey and Harvey R&N Trust,
Appellees
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CVCD-XX-XXXXXXX
Honorable M. Rex Emerson, Judge Presiding
ORDER
Appellant filed the opening brief on September 29, 2022. Appellees’ brief was due on
October 31, 2022. Appellees did not file their brief. On November 3, 2022, this court warned
Appellees that if they did not respond, the case would be set for submission without their brief.
On November 10, 2022, this court received Appellees’ Response to Order for Brief from
Defendants, which contained a summary of substantive case points, as well as a copy of a
message addressed to Judge Rex Emerson in the Bandera County District Court, explaining that
Appellees submitted no responsive brief because they had not received notification to do so. On
November 14, 2022, this court received Appellees’ responsive brief. The brief does not comply
with Rule 38.2 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.2 (requiring
appellees to comply with Rule 38.1, except certain exclusions). Specifically, the brief has the
following defects.
No part of the brief contains any citations to the clerk’s record. Contra id. R. 38.1(i)
(“The brief must contain . . . appropriate citations . . . to the record.”). No part of the brief
contains citations to authorities. Contra id. (requiring “appropriate citations to authorities”).
The brief contains no Table of Contents, Index of Authorities, Summary of the Argument, and no
Prayer. Contra id. R. 38.1(b), (c), (h), (j). The brief does not contain a certificate of compliance.
Contra id. R. 9.4(i)(3). It also contains no certificate of service. Contra id. R. 9.5(e).
This court may order a party to amend, supplement, or redraw a brief if it flagrantly
violates Rule 38. See id. R. 38.9(a). We conclude that the defects described above constitute
flagrant violations of Rule 38.
Therefore, we strike Appellees’ brief. If Appellees choose to file an amended brief, we
order them to do so within ten days of the date of this order. The amended brief must correct
all of the violations listed above and fully comply with the applicable rules. See, e.g., id. R.
9.4, 9.5, 38.2.
If an amended brief is not timely filed as ordered, the appeal will be set for submission
without an appellee’s brief. See Jackson v. Tex. Bd. of Pardons & Paroles, No. 01-03-00862-
CV, 2008 WL 921035, at *1 n.2 (Tex. App.—Houston [1st Dist.] Apr. 3, 2008, no pet.) (mem.
op.) (“‘In a civil case, the court will accept as true the facts stated [in appellant’s brief] unless
another party contradicts them.’” (alteration in original) (quoting TEX. R. APP. P. 38.1(g))).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 28th day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court