The opinion
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Eugene V. McMahon v. Marcia Zimmerman, Individually, and the
Zimmerman Law Firm, L.L.P.
Appellate case number: 01-12-01090-CV
Trial court case number: 2011-37680
Trial court: 281st District Court of Harris County
Appellees, Marcia Zimmerman and the Zimmerman Law Firm, L.L.P., have filed a
“Motion for Involuntary Dismissal in Civil Case.” In their motion, Zimmerman and the
Zimmerman Law Firm request dismissal of this case based on the alleged failure to comply with
Texas Rule of Appellate Procedure 38.1 by appellant, Eugene V. McMahon. In his response,
McMahon “recognize[d] the defects cited by Appellees [sic] motion and respectfully request[ed]
the opportunity to re-brief to cure the defects.” McMahon also filed a “Motion for Extension of
Time to Refile Brief to Cure Procedural Defects in Civil Case,” seeking “at least ten (10)
additional days” to correct his brief. Finally, McMahon re-filed his motion for extension with a
certificate of conference indicating that Zimmerman and the Zimmerman Law Firm have agreed
to his motion.
Neither the statement of the case nor the statement of facts in McMahon’s brief contains
any references to the record. See TEX. R. APP. P. 38.1(d), (g). Further, McMahon failed to
include a copy of the trial court’s findings of fact and conclusions of law in the appendix.1 See
TEX. R. APP. P. 38.1(k)(1)(B). Nevertheless, briefing rules are to be liberally construed,
substantial compliance with Rule 38 is sufficient, and we must permit a party to amend,
supplement, or redraw a brief even when Rule 38 has been flagrantly violated. See TEX. R. APP.
P. 38.9.
Accordingly, we GRANT McMahon’s agreed motion for an extension of time, DISMISS
McMahon’s non-agreed motion as moot, and DENY Zimmerman and the Zimmerman Law
Firm’s motion for involuntary dismissal. We further ORDER McMahon to file an amended
1
Zimmerman and the Zimmerman Law Firm also contend that McMahon’s brief fails “to
make appropriate citations to the record when presenting several purported facts,” citing
to Rule 38.1(h). Rule 38.1(h), however, applies to the summary of the argument and does
not require record references. See TEX. R. APP. P. 38.1(h).
brief, containing all necessary references to the record and conforming to Rule 38.1, no later than
August 13, 2013. Zimmerman and the Zimmerman Law Firm’s brief will be due no later than 30
days after the date McMahon’s amended motion is filed. See TEX. R. APP. P. 38.6(b).
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
Acting individually Acting for the Court
Date: July 26, 2013