Inadequate and Incorrect Briefing on Appeal

The Texas Rules of Appellate Procedure include specific requirements for briefs to the courts of appeals. These requirements are set forth in Rule 38 (“Requisites of Briefs”). One part of this rule states: “The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” A party who does not heed this rule will likely lose his appeal, as did the appellant in In re Marriage of O’Brien, No. 14-13-00283-CV (Tex. App. – Houston [14th Dist.] May 6, 2014).

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Appellant’s Issues

O’Brien was a divorce case. On appeal, the wife argued that the trial court abused its discretion by:

  • Assigning her a $32,000 community debt;
  • Denying her reimbursement claim;
  • Denying her credit for making payments on debt on community land; and
  • Characterizing her business as community instead of separate property.

The Fourteenth Court of Appeals ruled against the wife on all four issues.

Inadequate Briefing

On the first issue – assigning wife the community debt – the court of appeals wrote:

In her appellate briefing, [wife] neither expressly states a basis – legal or otherwise – for her contention that the trial court erred in assigning this debt to her, nor cites any authority supporting her assertion that the trial court erred. This issue is therefore inadequately briefed.

The court continued:

Moreover, [wife] offers no contentions, analysis, or values regarding the cash and financial and retirement accounts or the other debts the trial court divided between the parties. Without such information, it is impossible to determine whether the trial court reached an equitable, just, and right division of the marital estate as a whole.

The second issue – the reimbursement claim – was also inadequately briefed. The wife did not “provide any authority or analysis” supporting her assertion that she was entitled to reimbursement.

Incorrect Briefing

The wife lost on her other two issues – credit for making payments and characterization of her business – because of what the record said. The wife claimed that the payments came from “her individual earnings.” The court responded that “the record citation [wife] provides does not support this statement.” Further, wife claimed that her business was not mentioned in pleadings or at trial but appeared “as if out of thin air” in the final decree. But the court noted that the business was mentioned several times in pretrial pleadings and orders as well as during trial.

Must Brief Properly

Wife faced a tough appeal because each of her claims was subject to the difficult abuse of discretion standard on appeal. In all likelihood, she would have lost her appeal. But her inadequate briefing and incorrect statements about the record surely did not help her cause before the court of appeals.

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