Bolling v. FARMERS BRANCH INDEPENDENT SCH.

• Decision Date: 27 July 2010
• Docket Number: No. 05-08-01566-CV.,05-08-01566-CV.
• Citation: 315 SW 3d 893
• Parties: 315 S.W.3d 893 (2010) Leslie and Julie BOLLING, Appellants, v. FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, City of Farmers Branch, and Dallas County, Appellees.
• Court: Texas Court of Appeals

315 SW 3d 893

Leslie and Julie BOLLING, Appellants, v. FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, City of Farmers Branch, and Dallas County, Appellees

No. 05-08-01566-CV.

Court of Appeals of Texas, Dallas

June 25, 2010.

Rehearing Overruled July 27, 2010.

Leslie Bolling, Addison, TX, for Appellants.

City Manager's Office, Farmers Branch, TX, Bridget Moreno, Charles Adren Caldwell, Edward Lopez, Jr., Linebarger, Goggan, Blair and Sampson, L.L.P., Daniel K. Bearden, Dallas, TX, for Appellees.

Before Justices MORRIS, FITZGERALD, and FRANCIS.

OPINION

Opinion By Justice MORRIS.

After the trial court rendered judgment against appellants Leslie Bolling and Julie Bolling for delinquent property taxes, they appealed. Representing themselves without an attorney, they filed an appellants' brief. We notified them the brief was deficient and instructed them to file an amended brief that complied with the Texas Rules of Appellate Procedure. They filed an amended brief. Because their amended brief is also deficient and fails to comply with long-established briefing rules, we will dismiss their appeal.

In Texas, an individual who is a party to civil litigation has the right to represent himself at trial and on appeal. TEX.R. CIV. P. 7; Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.1983) (orig.proceeding). The right of self-representation (or being what is commonly called a pro se litigant), carries with it the responsibility to adhere to our rules of evidence and procedure, including our appellate rules of procedure if the party chooses to represent himself at the appeal level. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978); Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex. App.-Dallas 2004, pet. denied). Courts regularly caution pro se litigants that they will not be treated differently than a party who is represented by a licensed attorney. See Mansfield, 573 S.W.2d at 184-85; In re N.E.B., 251 S.W.3d 211, 212 (Tex.App.-Dallas 2008, no pet.).

In this case, our notice to appellants stated that their "failure to file an amended brief that complies with the Texas Rules of Appellate Procedure within ten days will result in dismissal of the appeal without further notice." Our appellate rules have specific requirements for briefing. TEX.R.APP. P. 38. These rules require appellants to state concisely the complaint they may have, provide understandable, succinct, and clear argument for why their complaint has merit in fact and in law, and cite and apply law that is applicable to the complaint being made along with record references that are appropriate. TEX.R.APP. P. 38.1(f), (h), and (i). Only when we are provided with proper briefing may we discharge our responsibility to review the appeal and make a decision that disposes of the appeal one way or the other. We are not responsible for identifying possible trial court error. See Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928, 931 (Tex.App.-Houston 14th Dist. 2008, no pet.). We are not responsible for searching the record for facts that may be favorable to a party's position. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283-84 (Tex.1994); Strange, 126 S.W.3d at 678. And we are not responsible for doing the legal research that might support a party's contentions. See Canton-Carter, 271 S.W.3d at 931-32. Were we to do so, even for a pro se litigant untrained in law, we would be abandoning our role as judges and become an advocate for that party. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.-El Paso 2007, no pet.).

When deciding whether an appellant's brief is deficient, we do not adhere to any rigid rule about the form of a brief. Pro se litigants may not be versed in the form of briefing favored by seasoned appellate practitioners. We do, however, examine briefs for compliance with prescribed briefing rules, including specifically, in this case, rule 38.1. TEX. R.APP. P. 38.1. And we examine every brief closely. If we can conclude a brief complies with the Texas Rules of Appellate Procedure, we submit the appeal for review and decision on the merits. If we cannot, we may dismiss the appeal as we are authorized to do. Tex.R.App. P. 42.3. In this case, we conclude appellants, although given the opportunity, have failed to comply with our briefing rules.

To comply with rule 38.1(f), an appellant must articulate the issue we will be asked to decide. From our perspective, we must be able to discern what question of law we will be answering. If an appellant is unable to or does not articulate the question to be answered, then his brief fails at that point. If the issue is identified, then rule 38.1(i) calls for the brief to guide us through the appellant's argument with clear and understandable statements of the contentions being made. If we must speculate or guess about what contentions are being made, then the brief fails. Importantly, statements of fact must be supported by direct references to the record that are precise in locating the fact asserted. If record references are not made or are inaccurate, misstated, or misleading, the brief fails. And, just as importantly, existing legal authority applicable to the facts and the questions we are called on to answer must be accurately cited. References to legal authority that have nothing to do with the issue to be decided are contrary to the requirement of rule 38.1(i). References to sweeping statements of general law are rarely appropriate. If we are not provided with existing legal authority that can be applied to the facts of the case, the brief fails.

The following is the entirety of appellants' attempt to comply with rule 38.1(f) and (i), which they have labeled "Argument:"

Point 1: Plaintiff's attorney was notified prior service CR Vol. 1 pages 99-102 of Defendants intent to depose by written questions. Plaintiff failed to respond to a properly served Subpoena Duces Tecum--”Deposition By Written Questions. Many attempts made by the service to collect this reasonable testimony went silent. Tr. Vol. 2 pages 9-19, Exhibits A, B, C, D CR Vol. 1 pages 176-178; 214, 256-259. Defendants have a right to this information much of allegedly their own and therefore, sought to compel Plaintiff's answers.

Plaintiff sought to quash and protect itself. The Court denying the Defendants access and sustaining the Plaintiff's failure in this instance triggered a Due Process violation CR Vol. 2 pages 374-375. Furthermore, Interrogatories delivered by mail to Plaintiff's attorney were not answered CR Vol. 1 pages 261-266 CR Vol. 2 376-384, 376, although Plaintiff's attorney, Mr. Bearden said he never received them.

Point 2: Texas Prop. Tax Code § 33.47. CR Vol. 2 pages 385-388 Presuming the statute valid, the only way to conclude that it is a valid statute is where the condition precedent is that there exists an agreement between the parties--”a commercial nexus. The Plaintiff produced no document satisfying the Statute of Frauds, Tex. Prop. Code § 112--”that provides any commercial nexus, any agreement between the Plaintiff and the Defendant.

Therefore, if the statute upon which the Plaintiff relies is valid, then the Plaintiff's claim fails for lack of a commercial nexus and for

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