James McKinnon v. Bank of America, N.A.

Fourth Court of Appeals
San Antonio, Texas
July 8, 2019
No. 04-19-00114-CV
James MCKINNON,
Appellant
v.
BANK OF AMERICA, N.A.,
Appellee
From the County Court, Gillespie County, Texas
Trial Court No. 1638
Honorable Mark Stroeher, Judge Presiding
ORDER
Appellant filed his brief on April 10, 2019 followed by an amended brief on April 22,
2019. The briefs fail to comply with the Texas Rules of Appellate Procedure, which govern
briefs filed in the appellate courts. Specifically, the amended brief does not contain:
1. “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);
2. a proper statement of facts that “state[s] concisely and without argument the
facts pertinent to the issues or points presented” and is supported by record
references as required by Rule 38.1(g);
3. an argument section that “contain[s] a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”
as required by Rule 38.1(i); and
4. a certificate of compliance certifying that the brief contains fewer than
“15,000 words if computer-generated, and 50 pages if not” as required by
Rule 9.4(i)(2)(B).
See TEX. R. APP. P. 9.5, 38.1. Although substantial compliance with these rules is
generally sufficient, this court may order a party to amend, supplement, or redraw a brief if it
flagrantly violates the rules. See id. R. 38.9(a). We conclude that the formal defects described
above constitute flagrant violations of Rules 38.1. and 9.5.
Accordingly, we ORDER appellant’s briefs stricken and ORDER appellant to file an
amended brief in this court on or before August 7, 2019. The amended brief must correct the
violations listed above and fully comply with Rule 38.1 and Rule 9.5. 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 laws and rules of procedure. Shull v. United Parcel Serv., 4
S.W.3d 46, 52 (Tex. App.—San Antonio 1999, pet. denied).
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).
We order the clerk of this court to serve a copy of this brief on appellant and all counsel.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 8th day of July, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court