Cynthia Baker v. Brookshire Grocery Company D/B/A Brookshire's Food and Pharmacy Wills Point 19 ( 2023 )

NO. 12-23-00137-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CYNTHIA BAKER, § APPEAL FROM THE 294TH
APPELLANT
V.
§ JUDICIAL DISTRICT COURT
BROOKSHIRE GROCERY COMPANY
D/B/A BROOKSHIRE'S FOOD AND
PHARMACY WILLS POINT #19,
APPELLEES § VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Appellant, Cynthia Baker, filed a notice of appeal on May 18, 2023, and e-filed her brief
on July 3. That same day, the Clerk of this Court notified Baker that her brief failed to comply
with Texas Rule of Appellate Procedure 38.1(k), which requires that an appendix accompany the
brief. See TEX. R. APP. P. 38.1(k). The notice warned that the brief would be returned and
deemed past due unless Baker filed a supplement to the brief on or before July 20. On July 28,
the brief was returned for non-compliance with Rule 38.1(k). The notice gave Baker until
August 7 to amend her brief. On August 7, Baker filed an appendix but did not refile a brief.
That same day, Appellee, Brookshire Grocery Company d/b/a Brookshire’s Food and Pharmacy
Wills Point #19, filed a brief, along with a motion requesting that this Court affirm the trial
court’s judgment on Brookshire’s brief without examining the record.
On August 9, the Clerk of this Court informed Baker that the brief was past due. We
further notified Baker that the appeal may be dismissed for want of prosecution unless a motion
for extension of time, containing a reasonable explanation for the failure to file a brief and
showing that Brookshire had not suffered material injury thereby, is filed no later than August
21. Additionally, this Court requested that Baker filed a response to Brookshire’s motion on or
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before August 28. The August 21 deadline passed, and Baker has not filed a brief, a motion for
leave to file a late brief, or a motion for extension of time. Baker likewise failed to respond to
Brookshire’s motion.
In civil cases, when an appellant fails to timely file a brief, the appellate court may: (1)
dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure
and appellee is not significantly injured by the failure to timely file a brief; (2) decline to dismiss
the appeal and give further direction as it considers proper; or (3) if an appellee’s brief is filed,
the court may regard that brief as correctly presenting the case and affirm the trial court’s
judgment upon that brief without examining the record. TEX. R. APP. P. 38.8(a). Because
Brookshire filed a brief on the merits, we grant Brookshire’s motion, accept the brief as
correctly presenting the case, and affirm the judgment on that brief without examining the
record. See TEX. R. APP. P. 38.8(a)(3); see also Dickey v. Harris Cty., No. 01-18-00639-CV,
2019 WL 1907298, at *1 (Tex. App.—Houston [1st Dist.] Apr. 30, 2019, no pet.) (per curiam)
(mem. op.) (affirming final judgment on appellees’ brief where appellant’s brief was struck for
noncompliance and appellant failed to timely file amended brief); De La Mora v. De La Mora,
No. 02-15-00012-CV, 2016 WL 3034640, at *1 (Tex. App.—Fort Worth May 26, 2016, no pet.)
(per curiam) (mem. op.) (affirming trial court judgment on appellee’s brief where appellant
failed to comply with Rule 38.1, resulting in striking of brief).
Opinion August 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 31, 2023
NO. 12-23-00137-CV
CYNTHIA BAKER,
Appellant
V.
BROOKSHIRE GROCERY COMPANY D/B/A BROOKSHIRE'S FOOD
AND PHARMACY WILLS POINT #19,
Appellees
Appeal from the 294th District Court
of Van Zandt County, Texas (Tr.Ct.No. 21-00161)
THIS CAUSE came to be heard on the brief of Appellee filed herein, and
the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, all costs are assessed against Appellant,
CYNTHIA BAKER, and that this decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.