Jeremiah Trombly v. Department of the Air Force

Department of the Air
Fourth Court of Appeals
San Antonio, Texas
November 25, 2014
No. 04-14-00729-CV
Jeremiah TOMBLY,
Appellant
v.
DEPARTMENT OF THE AIR FORCE,
Appellee
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CV-14-0000304
Honorable M. Rex Emerson, Judge Presiding
ORDER
Appellant filed his brief on November 24, 2014. The brief does not comply with Rule
38.1 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1. Specifically, the brief
violates Texas Rule of Appellate Procedure 38 in that it does not contain:
(1) an identity of parties and counsel;
(2) a table of contents;
(3) an index of authorities;
(4) a statement of the case;
(5) a brief statement of the issues presented, setting out what errors were allegedly
committed by the trial court;
(6) include a statement of facts with record references;
(7) a summary of the argument;
(8) argument with appropriate citation to authorities and the appellate record;
(9) a prayer for relief; or
(10) an appendix.
See id. R. 38.1(a) (requiring identity of parties and counsel), (b) (requiring table of contents),
38.1(c) (requiring index of authorities), 38.1(d) (requiring statement of case); 38.1(f) (requiring
statement of issues presented), 38.1(g) (requiring statement of facts with record reference),
38.1(h) (requiring requiring summary of argument, 38.1(i) (requiring argument with appropriate
citation to authority and record), 38.1(j) (requiring prayer for relief); and 38.1(k) (requiring
appendix with copy of judgment or other appealable order, any jury charge and verdict form, any
findings of fact and conclusions of law, and text of applicable rules, regulations, ordinances,
statutes, constitutional provisions, or other law on which argument is based, or any contract or
other document central to argument).
Additionally, appellant failed to: (1) sign the brief; (2) provide his mailing address; (3)
provide his telephone number; (4) provide his fax number, if any; and (5) provide an email
address. See id. R. 9.1(b). The front cover of the brief does not include all of the information
required by Rule 9.4(g). See id. R. 9.4(g) (requiring front cover of filed document to contain
case style, case number, title of document, name of party filing document, name and mailing
address, telephone number, fax number, if any, and email of party). The brief also fails to
include the certificate of service, showing proof of service on the opposing party or its counsel.
See TEX. R. APP. P. 9.5(d), (e). Moreover, we cannot discern from appellant’s brief the nature of
the action, the relief granted or denied below, nor the exact nature of the complaints appellant is
asserting on appeal.
Although substantial compliance with Rule 38.1 is generally sufficient, this court may
order a party to amend, supplement, or redraw a brief if it flagrantly violates Rule 38.1. See id.
R. 38.9(a). We conclude that the formal defects described above constitute flagrant violations of
Rule 38.1.
Accordingly, we ORDER appellant’s brief stricken and ORDER appellant to file an
amended brief in this court on or before December 29, 2014. The amended brief must correct
the violations listed above and fully comply with the applicable rules. See, e.g., id. R. 9.4, 9.5,
38.1. If the amended brief does not comply with this order, we “may strike the brief, prohibit
[appellant] from filing another, and proceed as if [appellant] had failed to file a brief.” See id. R.
38.9(a); see also id. R. 38.8(a) (authorizing this court to dismiss appeal if appellant fails to timely
file brief). Even if we do not strike the brief and prohibit appellant from filing another brief, we
may find that any issues raised by appellant are waived due to inadequate briefing, and overrule
those issues. See, e.g., Marin Real Estate Partners v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San
Antonio 2011, no pet.).
We recognize that appellant represents himself on appeal, i.e., he is acting pro se.
However, the law is clear that pro se litigants are held to the same standards as licensed attorneys
and must comply with all applicable rules of procedure, including the rules governing appellate
briefs. 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 her case on appeal just as she is required to properly
present her case to the trial court. Id. Accordingly, we will not apply different standards merely
because an appeal is brought by a litigant acting without advice of counsel. Id.
If appellant timely files a brief that complies with this order, appellee’s brief will be due
thirty days after appellant’s brief is filed. See TEX. R. APP. P. 38.6(b).
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 25th day of November, 2014.
___________________________________
Keith E. Hottle
Clerk of Court