Petition for Writ of Certiorari — Linda A. Porter, Petitioner v. Kennard Law PC, dba Kennard Richard PC, et al.
Supreme Court briefSep 7, 2023
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In the Supreme Court of the United States
LINDA PORTER,
PETITIONER,
v.
KENNARD PC (D/B/A KENNARD BLANKENSHIP
& ROBINSON PC), KENNARD BLANKENSHIP &
ROBINSON PC, KENNARD RICHARD PC; PETER
COSTEA (ATTORNEY); GREGG ROSENBERG
(ATTORNEY), RESPONDENTS.
ON PETITION FOR WRIT OF CERTIORARI TO
THE FIRST COURT OF APPEALS, HOUSTON, TX
PETITION FOR WRIT OF CERTIORARI
Linda Porter
P.O. Box 2861
Spring, Texas 77383
(713) 294-7646
lp orter 12 3@y ahoo. com
In Propria Persona
QUESTIONS PRESENTED
1. Whether the appellate court violated Porter’s Fifth
and Fourteenth Amendment Constitutional Rights,
by denying her right of appeal and due process of law
when it dismissed her appeal for want of prosecution.
Porter substantially complied with the court’s
briefing rules and, if not, was due additional time and
attempts to comply under the court’s rule for
substantive defects, and the court made multiple
errors in their assessment of her brief.
2. Whether the appellate court violated Porter’s Fifth
and Fourteenth Amendment Constitutional Rights,
when it failed to accept Porter’s brief in “another
form”, which the interests of justice required, given
that she was Pro Se and not trained as a lawyer. See
rule 9.4. The court has allowed briefs in noncompliant
form submitted by prisoners, for example, and has
allowed other appellants more attempts and longer
times to conform to the court’s briefing rules.
3. Whether the Appellate Court violated Porter’s
Fifth and Fourteenth Amendment Rights, when it
failed to invoke the remedies available to it under rule
39.9(b) for substantive defects, but instead applied
the harsh remedies set out under rule 38.9(a) for
formal defects. As both formal and substantive defects
in the brief were cited by the Court, the less harsh
remedies for substantive defects should have been
afforded Porter before the harsh to protect her right
of appeal and to afford her due process of law.
i
PARTIES TO THE PROCEEDINGS
Petitioner:
Linda Porter, Por Se, was plaintiff in trial court, and
appellant in the court of appeals, petitioner in the
Supreme Court of Texas, and is petitioner in this
Court.
Respondents:
The following parties were defendants in trial court,
and respondents in this Court:
Attorney Peter Costea, Law Office of Peter
Costea, 4544 Post Oak Place Ste 350, Houston,
TX 770271 Counsel - Edwin Sullivan, Oberti
Sullivan LLP, 712 Main St., Ste 900. Houston,
TX 77002-3260
Attorney Gregg M. Rosenberg, Rosenberg
Sprovach; 518 Travis Ste 200, Hous., TX 77002
Kennard PC (D/B/A Kennard, Blankenship &
Robinson PC), Kennard Blankenship &
Robinson PC, Kennard Richard PC. 2603
Augusta Dr Ste 1450, Houston, TX 770576145, Alfonso Kennard, Owner, Kennard P.C.,
2603 Augusta Dr Ste 1450, Houston, TX 770576145; Counsel - Eddie Hodges, 2603 Augusta
Dr Ste 1450, Houston, TX 77057-6145
The following parties were appellees in their original
capacities in the court of appeals, respondents in the
n
Supreme Court of Texas, and respondents in this
Court:
Attorney Peter Costea, Law Office of Peter
Costea, 4544 Post Oak Place Ste 350, Houston,
TX 77027
Attorney Gregg M. Rosenberg, Rosenberg &
Sprovach, 518 Travis Ste 200, Hous., TX 77002
Kennard PC (D/B/A Kennard, Blankenship &
Robinson PC), Kennard Blankenship &
Robinson PC, Kennard Richard PC. 2603
Augusta Dr Ste 1450, Houston, TX 77057*
6145, Alfonso Kennard, Owner, Kennard P.C.,
2603 Augusta Dr Ste 1450, Houston, TX 77057*
6145
The following was a non-party in the trial court, court
of appeals, and in the Supreme Court of Texas:
Exxon Mobil Corporation, 22777 Springwoods Village
Parkway, Spring, Texas 77389, Counsel for Exxon
Mobil Corporation, Attorney Steven J. Knight, and
Attorney Diana Gomez, Chamberlain Law, 1200
Smith Street, Suite 1400 Houston, Texas 77002*4310
in
CORPORATE DISCLOSURE STATEMENT
Petitioner is Pro Se, and is not a corporation.
LIST OF PROCEEDINGS BELOW
1. Supreme Court of Texas, Austin, Texas; Case
No.: 23-0034; Title: Linda Porter v. Kennard
PC (D/B/A Kennard Blankenship & Robinson
Pc), Kennard Blankenship & Robinson Pc,
Kennard Richard PC; Peter Costea; Gregg
Rosenberg, Respondents! Denial Date of
Motion for Rehearing: June 9, 2023; Denial
Date of Petition for Review is March 17, 2023.
2. First Court of Appeals, Houston, Texas! No.:
Linda Porter v.
01-22-00153-CV; Title:
Kennard PC (D/B/A Kennard Blankenship &
Robinson Pc), Kennard Blankenship &
Robinson Pc, Kennard Richard PC; Peter
Costea! Gregg Rosenberg, Respondents! Denial
Date of 1st Amended Motion for EnBanc
Reconsideration is November 29, 2022; Denial
Date of Porter’s Original Motion for EnBanc
Reconsideration is November 29, 2022! Appeal
Dismissal Opinion Date is October 20, 2022.
3. Harris County District Court, #127, Houston,
Texas! No.: 2017-67479! Title: Linda Porter v.
Kennard PC (D/B/A Kennard Blankenship &
Robinson Pc), Kennard Blankenship &
Robinson Pc, Kennard Richard PC; Peter
Costea; Gregg Rosenberg, Respondents!
Nonsuit Dismissal Order Date: November 14,
2021.
IV
TABLE OF CONTENTS
1
Questions Presented....................
11, in
Parties To The Proceedings........
IV
Corporate Disclosure Statement
IV
List OfProceedings Below..........
.................... v, vi
Table Of Contents.........................
vii, viii, ix, x, xi
Table Of Authorities....................
1
Petition For Writ Of Certorari....
1
Opinions Below.............................
1
Statement OfJurisdiction..........
Constitutional And Statutory Provisions Involved ...2
2
Fifth AmendmentFourteenth Amendment Provides in Relevant Part
2
2
42 U.S.C. §1983 Provides in Relevant Part..
3
Statement Of The Case........................................
3
Nature Of The Case..........................................
4
Disposition In The Trial Court........................
4
Proceedings In The Trial Court......................
7
Disposition In The First Court of Appeals....
9
Proceedings In The First Court of Appeals...
11
Reasons For Granting This Writ Of Certorari.
The First Court of Appeal’s Decision is in Conflict
with Supreme Court Decisions, as well as other
Appeal Court's Decisions, which Undermines
Uniformity of Law.................................................... 11
The First Court of Appeal’s Decisions is
inconsistent with, and in Conflict with it's Own
Decisions..................................................................... 15
v
Issue Off Wide Application and National Importance
16
There Is Reversible Legal Error........................... 17
Applicable Legal Standard................................... 18
Application Of The Rules By The First Court of
Appeals................................................................... 20
Conclusion.............................................................. 24
vi
TABLE OF AUTHORITIES
Page(s)
Cases
2218 Bryan Street, Ltd. v. City of Dallas,
175 S.W.3d 58, (Tex. App.-Dallas 2005, pet.
denied).............................................................
19
Belle v. State, 543 S.W.3d 871 (Tex. App.—Houston
24
[14th Dist.] 2018, no pet.)
Bolling v. Farmers Branch Indep. School Dist.,
315 S.W.3d 893 (Tex. App.-Dallas 2010, no pet.).19
Boyd v. Spann, 2022 WL 1251054 (Tex. App.—
Corpus Christi-Edinburg Apr. 28, 2022, no pet.) .21
E.C.I. Corp. v. G.G.C. Co.,237 N.W. 2d 627 (Minn.
12
1976)
Eight Thousand, One Hundred & Twenty & 00/100
Dollars in U.S. Currency v. State,2021 WL
3777147 (Tex. App.—Corpus Christi-Edinburg
21
Aug. 26, 2021, no pet.)
El Paso Nat. Gas v. Minco Oil & Gas, Inc.,
8 S.W.3d 309 (Tex. 1999).........................
18, 19
Escalante v. UTMB, 2013 WL 2948417 (Tex. App.—
Corpus Christi-Edinburg June 13, 2013, pet.)
21
dism’d
Foster v. Comal Cnty. Sheriff, 2009 WL 2476652
(Tex. App.—Austin Aug. 13, 2009, no pet.).... 16, 24
Vll
Fredonia State Bank v. General Am. Life Ins. Co.,
881 S.W.2d 279 (Tex. 1994)..................................... 20
Garcia v. Garcia, 2013 WL 656819 (Tex. App.—
Corpus Christi-Edinburg Feb. 21, 2013, no pet.) .21
Harkins v. Dever Nursing Home, 999 S.W.2d 571
(Tex. App.-Houston [14th Dist.], 1999, no pet.) ...19
Hernandez v. Hernandez,318 S.W.3d 464 (Tex.
App.-El Paso 2010, no pet.)...............................
18
Hunter v. Anchorbank N.A., No. A14--1599 (Minn.
Ct. App. Oct. 28, 2014)............................................... 13
Hunter v. Anchorbank, N.A., No. A14--1599 (Minn.
13
Jan. 20, 2015)
In re Hore’s Estate,
220 Minn. 365, 19 N.W.2d 778 (1945)
13
Jon v. Dinwiddie, 2011 WL 3629182 (Tex. App.—
16, 24
Amarillo Aug. 18, 2011, no pet.)
Jones v. Quarterman, 2012 WL 506408 (Tex. App.—
Corpus Christi-Edinburg Feb. 16, 2012, no pet. ..21
Keel v. Minshew, 2022 WL 4243709 (Tex. App.—
21
Houston [14th Dist.] Sept. 15, 2022, no pet.)
Le Roy v. Marquette Nat’l Bank,
277 N.W.2d 351 (Minn. 1979)..
vni
12
Marsh v. Wallace, 924 S.W.2d 423 (Tex.App.-Austin
19
1996, no writ)
Mitschke v. Borromeo, 645 S.W.3d 251, 261 (Tex.
2022)............................................................................ 14
Nguyen v. Kosnoski, 93 S.W.3d 186 (Tex. App.—
Houston [14th Dist.] 2002, no pet.)...................
19
Ohleton v. Guzman, 2016 WL 7011582 (Tex. App.—
Corpus Christi-Edinburg Dec. 1, 2016, no pet.)...22
Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985)..... 24
Plummer v. Reeves, 93 S.W.3d 930 (Tex. AppAmarillo 2003, pet. denied)................................
19
Porter v. Kennard Law PC,
2022 WL 11413164 (Tex. App.—Houston [1st Dist.]
1, 23
Oct. 20, 2022, no pet. h.)
Read v. Patel, 2017 WL 2570041 (Tex. App.—Corpus
21
Christi-Edinburg Mar. 2, 2017, no pet.)
142 S.Ct. 2645, 212
Reed v Goertz, 596 U. S.
L.Ed.2d 604 (2022).....
11
Republic Underwriters Ins. Co. v. Mex-Tex, Inc.,
150 S.W.3d 423 (Tex. 2004)...................................
18
Richard v. Cornerstone Constructors, Inc.,
921 S.W.2d 465 (Tex.App.-Houston [1st Dist.]
1996, writ denied)................................................
19
IX
Salas v. Moreno, 2014 WL 1007782 (Tex. App.—
Corpus Christi-Edinburg Mar. 13, 2014, no pet.) 21
San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323
(Tex. App.-Houston [14th Dist.] 2005, no pet.) ....21
Setter v. Mauritz, 351 N.W.2d 396, 398 (Minn. Ct.
13
App. 1984)
Singh v. Bank ofAm., N.A.,
2013 WL 5970894 (Tex. App.—Corpus ChristiEdinburg Nov. 7, 2013, no pet.)............................ 21
Stebbins v. Friend, Crosby & Co.,
191 Minn. 561, 254 N.W. 818 (1934)
13
Sweed v. City ofEl Paso, 195 S.W.3d 784 (Tex. App.18
E1 Paso 2006, no pet.)
United States v. James Daniel Good Real Property,
11
510 U.S. 43, 48 (1993)
Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).....18
Whitaker v. Guillen, 2022 WL 1412329 (Tex. App.—
Corpus Christi-Edinburg May 5, 2022, no pet.)...22
White v. Harvest Credit Mgmt. V,
2004 WL 2297367 (Tex. App.—Houston [14th
Dist.] Oct. 14, 2004, no pet.)..............................
21
Constitutional Provisions and Statutes
42 U.S.C. § 1983 .......................................
2
x
The Fifth Amendment
2, 24
The Fourteenth Amendment
2, 24
Rules
Texas Rule of Appellate Procedure 9.4
8, 10. 23
Texas Rule of Appellate Procedure. 38.1
8, 18
Texas Rule of Appellate Procedure 38.8(a)
20
Texas Rule of Appellate Procedure 38.9
8, 18, 19
Texas Rule of Appellate Procedure 38.9(a)
8, 20
Texas Rule of Appellate Procedure 38.9(b)
22
Other Authorities
The Judicial Conduct Reporter, Vol 36, No. 3, Fall
2014......................................................................... 14
xi
PETITION FOR A WRIT OF CERTIORARI
Porter respectfully requests this Court to take
notice that she is Pro Se, is not an Attorney, and does
not have legal training. As a result, she respectfully
requests that her pleadings be liberally construed.
See Haines v. Kerner, 404 US at 520 (1980); Birl v.
Estelle, 660 F.2d 592 (1981).
OPINIONS BELOW
Denial of Porter’s Motion for Rehearing from
Supreme Court of Texas (23-0034) is on June 9, 2023,
not published, see Appendix Page 2; and Denial of her
Petition for Review is on March 17, 2023, not
published, see Appendix Page 3.
Denial of Porter’s 1st Amended Motion for
EnBanc Reconsideration by the Appeals Court (01-2200153-CV) is on November 29, 2022, not published,
see Appendix Page 4; Denial of her Original Motion
for EnBanc Reconsideration is on November 29, 2022,
not published, see Appendix Page 5; and Appeal
Dismissal Opinion is published at Porter v. Kennard
Law PC, No. 01-22-00153-CV (Tex. App. October 20,
2022) (CaseText), Appendix Page 6.
Order signed by Trial Court (2017-67479),
nonsuiting Porter’s Case is November 14, 2021, not
published, Appendix Page 26.
STATEMENT OF JURISDICTION
The most recent order and court from which
Porter’s petition deadline is calculated from is the
June 9, 2023 order from the Supreme Court of Texas.
The Supreme Court of the United States has
1
jurisdiction over this matter pursuant to 28 U.S.C. §
1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment.
No person shall be held to answer for a
capital, or otherwise infamous crime,
unless on a presentment or indictment of
a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia,
when in actual service in time of War or
public danger; nor shall any person be
subject for the same offence to be twice
put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a
witness against himself, nor be deprived
of life, liberty, or property, without due
process of law; nor shall private property
be taken for public use, without just
compensation.
The Fourteenth Amendment provides in relevant
part:
“The Due Process Clause of the Fourteenth
Amendment provides in relevant part:
[N]or shall any State deprive any person of life,
liberty, or property, without due process of law . . . .”
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any
statute, ordinance, regulation, custom,
2
or usage, of any State or Territory or the
District of Columbia, subjects, or causes
to be subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured in an
action at law, suit in equity, or other
proper proceeding for redress ....
STATEMENT OF THE CASE
A. Nature of the Case:
This Writ of Certorari seeks review of the
dismissal by Houston’s First Court of Appeals of a
legal malpractice case brought against three sets of
law firms and attorneys who collectively were paid
over $50,000.00 but failed to develop Petitioner Linda
Porter’s (Porter’s) employment discrimination and
retaliation case competently and diligently in federal
court. Their failures resulted in the entry of a
summary judgment dismissing Porter’s action
against her employer, ExxonMobil.
Porter’s malpractice case was dismissed by the
trial court on Porter’s withdrawn notice of nonsuit.
Porter appealed the trial court’s refusal to
acknowledge her withdrawal of the nonsuit, as well as
the court’s orders on limitations issues, discovery, and
expert testimony. Generally, Porter claimed on
appeal that she had been denied due process in the
trial court.
3
B. Disposition in the Trial Court:
Porter sued Respondents in the trial court
below for legal malpractice under several theories of
recovery. The suit alleged that Respondents failed to
meet their standard of care, breached their contracts,
and defrauded their client by, among other things,
failing to conduct adequate discovery in the federal
court, including failing to file a motion to compel to
obtain complete discovery responses from the
employer and failing to present to the federal court all
of the little evidence they had obtained to avoid
summary judgment (verified by Affidavits from three
separate Attorneys against all three Respondents).
Porter also claimed that Respondents failed to seek a
continuance of the summary judgment hearing to
conduct additional discovery when it was obvious the
existing evidence was lacking, as painfully noted by
Judge Lee Rosenthal in her memorandum dismissing
Porter’s case.
In essence, Porter claims that Respondents
each took $15,000 to $22,000 retainers/contingency
fees but did little to earn the retainer and nothing to
produce a fund against which to apply the
contingency. She alleged this scheme is intentional
and endemic in the employment law bar, as shown by
her results in employing three separate Houston
employment firms on similar terms with similar
results.
C. Proceedings in the Trial Court
The Case began progressing, but Porter had to
file Bankruptcy. Costea filed suggestion of
Bankruptcy, so the Case went on hold. Respondents
even showed-up
at the
Bankruptcy Sale,
4
unsuccessfully trying to take Porter’s Case to end the
Case. Once the Case ensued, Respondents displayed
blatant, unruly behaviors and disobedience to the
Court by threatening Porter, collectively caused an
additional 2 and M- years delay by playing games,
providing false information to the Courts, refusing to
cooperate in Discovery, prematurely walking out of
and failing to attend Depositions, then at times,
requesting to Quash Depositions.
While Porter did everything she could to
comply with the rules of the court, Respondents
rampantly abused the discovery process for two and
one-half years with impunity before the court who
refused to subdue them. Respondents failed to
respond to discovery, failed to appear for depositions
or otherwise made them a mockery.
Porter initially sent Subpoena to ExxonMobil
for Material Discovery and Trial Court initially
signed a February 2020 Order for Porter to get it from
Respondents, who said they did not have it. Porter
refreshed her Subpoena, but Trial Court repeatedly
denied her Motions, including February and April
2020, and told Porter “if he Ruled in her favor,
ExxonMobil would Mandamus hind’ (but a ruling
should not be based on whether or not ExxonMobil
would Mandamus him). Since one of ExxonMobil’s
argument was that the Material Discovery was
“protected”, Porter then requested for her Expert
Witness and Fact Witness Attorney to have the
discovery, which was also denied on February 14,
2021. But that Material Discovery was required for a
Plaintiff to be successful in their Malpractice Case.
October 19, 2020, Porter even filed a Mandamus,
which was denied by Appeal Court on January 14,
5
2021. When Porter finally got a Pro Bono Attorney,
she made another request for the Material Discovery,
but it was again denied on May 10, 2021, with a
clause from Trial Court that another attempt would
be sanctioned.
Respondents filed approximately eight to ten
dispositive motions, which initially were denied by
the trial court February 19, 2020, but regardless of
Petitioner’s Claims being within the Statue of
Limitations, legitimately plead in her Responses,
Trial Court later reversed itself and, wrongly
dismissed all Porter’s Claims except Negligence
against Kennard August 7, 2020.
This left only the negligence claim against
Respondent Kennard Law, who either missed or
walked out of least 12 - 14 noticed depositions.
Although the trial court ordered Kennard to cooperate
and even struck his answer March 2, 2021, to date he
still has not completed his deposition. The trial court
failed to rule on Porter’s motion for default judgment
for failure to answer after it struck Kennard’s answer.
When Porter lost her only expert on standard
of care and causation on the eve of trial, the court
denied a continuance for Porter to find a new expert,
even though the court reinstated approximately 12 —
14 depositions for Kennard Law. Seeing no chance of
prevailing at trial without an expert, Porter’s
sometimes attorney nonsuited Porter’s Case (without
prejudice) and withdrew. But as one can see, Pro Se
Porter’s Case appeared to just simply be arbitrarily
and capriciously tossed or disregarded by the Trial
Court and Appeal Court.
6
Porter even requested recusal of Trial Court
Judge which were denied by the Trial Court and the
Administrative Judge on December 2 and 29, 2021.
Pro Se, Porter then timely noticed her decision
to withdraw the nonsuit, but the trial Court ignored
her notice and dismissed her case. This appeal
ensued.
D. Disposition in the First Court of Appeals
In her opening brief, although Porter made the
appellate court aware of how the trial court denied
her due process, failed to administer justice and had
wrongfully dismissed her claims, the court ultimately
dismissed her appeal. The court rejected Porter’s
opening brief, deeming it deficient and recited that
the brief failed to conform to court rules as to length,
complete list of parties, citation to authority, concise
statements of the nature of the case and the facts of
the case, and the course of proceedings and
disposition. Additionally, the court noted that the
brief did not contain clear and concise argument with
appropriate citations. Porter requested the court to
accept a nonconforming brief as to length because she
was suing three separate attorneys whose cases were
combined into one case, but her request was denied.
She then attempted to conform the brief to the court’s
rules, but those efforts were also rejected, and her
appeal was dismissed without further leave to
address the court’s concerns about her opening brief.
Porter believes that:
(l) The Appeal Court made multiple errors in their
assessment of her brief, that her brief
substantially complied with the rules and, if
7
not, that her corrected brief should have been
accepted regardless, given her pro se status
and that the brief was at least as compliant as
other briefs the court has accepted,
(2) Her brief substantially comphed with rules 9.4
and 38.1. See TRAP 38.9. However, if
substantial compliance was lacking, the
appellate court abused its discretion by not
invoking the remedies available to it under rule
39.9(b) for substantive defects, but instead
applied the harsh remedies set out under rule
38.9(a) for formal defects. As both formal and
substantive defects in the brief were cited by
the Court, the less harsh remedies for
substantive defects should have been afforded
Porter before the harsh remedies of rule 38.9(a)
to protect her right of appeal and to afford her
due process of law. Instead, the appellate court
mechanically cut short Porter’s right to cure
the defects of her brief and effectively denied
her right of appeal without considering the
contents of her nonconforming brief, and
(3) The interests of justice required the appellate
court to accept her brief in “another form” (as
she requested) given that she was representing
herself and was not trained as a lawyer. See
rule 9.4. The court has allowed briefs in other
forms submitted by prisoners, for example, and
has allowed other appellants more attempts
and longer times to conform to court rules. The
court arbitrarily applied the rules to Porter and
denied her equal justice under the law.
8
E. Proceedings in First Court of Appeals
Porter filed her opening brief on July 25, 2022
and quickly amended it on July 27, 2022, to provide
major updates to her table of contents.
On August 2, 2022, an appeal court Reviewer
struck Porter's briefs and requested corrections with
word limits.
On August 11, 2022, Porter responded with a
Motion stating her willingness to comply, but also
requested the court, in the interests of justice, to
accept a “Nonconforming Brief Exceeding Word
Limits” (doubling, not tripling word count).
On August 30, 2022, Appellate court denied her
motion. The order allowed Porter only one day to meet
the September 1, 2022 deadline to file a corrected
brief. However, since she preemptively filed a Motion
for Extension on August 25, 2022, an extension was
granted on September 1, 2022, with no further
extensions. A corrected and compliant brief was due
on October 3, 2022.
Porter is not an Attorney, is not trained in law,
but worked diligently, made what she thought were
the requested corrections, filed her “early” corrected
brief on September 22, 2022. Upon realizing the last
few pages of her corrected brief were inadvertently
left out, Porter filed an amended corrected brief on
September 23, 2022 (again, before the deadline).
Also, although filed before the deadline, she filed an
October 4, 2022 Retroactive Motion for Leave.
On October 9, 2022, Porter filed her appendix,
which included both records that were already filed in
her appeal case by the Post Trial Clerk as well as the
additional records required for her Appendix.
9
On October 10, 2022, Appeal court clerk Kim
told her^
(1) No need to file another brief
when she files the appendix, and some
attorneys do not file appendix with brief
because it is too voluminous, and
(2) No need to include the
plethora of court records in her appendix
(to avoid overworking the judges), as
they were already filed in the appellate
record by the Post Trial Clerk; instead
just cite to the record; otherwise her
appendix would be rejected.
Uncertain of this advice, Porter filed an
October 11, 2022 Motion for Leave to file a first
Appendix Addendum, excluding the records that were
already filed in her appeal case by the Post Trial
Clerk, then a second Appendix Addendum on October
14, 2022, which incorporated those records back into
her appendix, to be certain nothing was lacking on her
September 2022 Corrected Brief.
On October 20, 2022, the appellate court’s
three-judge panel dismissed Porter's appeal for want
of prosecution. The order stated that Porter failed to
make corrections requested by the clerk. Porter
requested reconsideration en banc, but it was denied.
The appellate court denied Porter due process
and failed to administer justice on her appeal. The
rules of appellate procedure state that the court may
accept a brief in “another form in the interest of
justice," R. 9.4, but the court made no determination
whether the brief afforded it a reasonable opportunity
to review the proceedings below. Instead, the court
used a technicality to mechanically deny Porter
10
substantive justice and thus
constitutional right of appeal.
denied
her
REASONS FOR GRANTING THIS WRIT OF
CERTORARI
1. The First Court of Appeal’s Decision is in
conflict with Supreme Court Decisions, as well
as other Appeal Court’s Decisions, which
undermines Uniformity of Law
The Due Process Clause of the Fourteenth
Amendment provides that no state shall “deprive any
person of life, liberty, or property, without due process
“Due process requires notice, an
of law....”.
opportunity to be heard, and impartiality. This
Court’s “precedents establish the general rule that
individuals must receive notice and an opportunity to
be heard before the Government deprives them of
property.” United States v. James Daniel Good Real
Property, 510 U.S. 43, 48 (1993). This has not been
afforded to Porter by the First Appeal Court in this
Case.
Also, there has long been disagreement and
conflict in the lower courts regarding the application
of the Due Process Clause. This is why the U.S.
Supreme Court is in the unique position to enforce
uniformity by resolving the conflict through a
decision applicable to all of the courts below it. This
way, the outcome of an appeal will not depend on the
court the party is in, but rather, the decision made by
the Supreme Court. In Reed v Goertz, this Court
granted Reed’s Writ of Certorari, stating “Because
the federal Courts of Appeals disagree about when
the statute of limitations begins to run for a § 1983
11
suit regarding a State’s post-conviction DNA testing
procedures, we granted certiorari.” 596 U. S. ------,
142 S.Ct. 2645, 212 L.Ed.2d 604 (2022). This should
be the same for Porter, as the First Court of Appeals’
rulings shows disagreement from within with varying
or different rulings for different litigants in same or
similar situations, as well as disagreement with other
Appeal Courts, so they do not have uniformity in their
rulings from an overall standpoint.
Other courts do not so harshly and
mechanically apply their briefing rules to deny
appellant their constitutional right of appeal.
The Supreme Court has sometimes been
lenient and allowed the merits of an
appeal to be heard even if the appeal is
not properly perfected. See Le Roy v.
Marquette Nat’l Bank, 211 N.W.2d 351,
353 (Minn. 1979) (“Even though the
appeal is defective, we will take
jurisdiction under [Rule 102], where the
facts and circumstances contributing to
the defect persuade us that appellant
was not inexcusably dilatory and that
justice would be better served by
reaching the merits of the case.”); see
alsoE.C.I. Corp. v. G.G.C. Co., 237 N.W.
2d 627, 629 (Minn. 1976) (allowing full
consideration of all issues on appeal
from an amended judgment when
technically only the amendments were
before the court for review. “[0]n the
peculiar facts of this case, justice is
better served by allowing the appeal.”)
12
Similarly, minor defects, such as listing
the wrong date for the order appealed
and other “clerical” errors have been
held not to be fatal. In re Hore’s Estate,
220 Minn. 365, 19 N.W.2d 778 (1945).
The Supreme Court has observed that
such flexibility flows from the remedial
nature of appeals themselves. Stebbins
v. Friend, Crosby & Co., 191 Minn. 561,
254 N.W. 818 (1934).
The Court of Appeals has the same ability
under the rules to proceed in the interest of justice,
yet, they have often been less flexible in cases where
the Supreme Court has allowed appeals from
nonappealable orders. Also see Setter v. Mauritz, 351
N.W.2d 396, 398 (Minn. Ct. App. 1984). The Court of
Appeals can and should construe its power to act in
the interest of justice more broadly. The rule is the
same for both courts, yet simply applied differently.
The Supreme Court’s order in Hunter v.
Anchorbank N.A. is another example where appellant
served appeal notice by facsimile which the Court of
Appeals concluded as an unacceptable form of service
under Rule 103.01, and dismissed the appeal as
untimely. No. A14--1599 (Minn. Ct. App. Oct. 28,
2014), yet when appellant petitioned the Supreme
Court, the petition was granted, and, “in the interests
of justice,” vacated the Court of Appeals and
remanded “with directions to accept the Notice of
Appeal.” Hunter v. Anchorbank, N.A., No. A14--1599
(Minn. Jan. 20, 2015). Appellant’s appeal was revived
because the Supreme Court believed that this way,
13
justice was best served. And besides, there was timely
notice, and the flaw was technical only as was in
Porter’s Case. Mitschke v. Borromeo, 645 S.W.3d 251,
261 (Tex. 2022) is also an example:
We conclude, however, that the
earlier cases better reflect this Court's
decisions that require courts of appeals
to find appellate jurisdiction even in the
face of minor and non-prejudicial
technical or clerical defects. We
acknowledge that Philbrook v. Berry;
683 S.W.2d 378 (Tex. 1985) (orig.
proceeding), appears to point in the
other direction. Although we could
distinguish that case—yet again—we
conclude that the sounder course is to
apply the principles of stare decisis and
overrule that decision.
Regardless of briefing deficiencies, at times,
even appellate courts in Texas and elsewhere have
accepted the briefs and ruled on the merits presented
absent the form desired by their rules. These courts
acted to provide substantial justice to the appellants.
Porter believes that she deserves no less
consideration on her appeal.
The Judicial Conduct Reporter, Vol 36, No. 3,
Fall 2014, states very plainly:
Many decisions authorize judges
to handle
cases
involving selfrepresented litigants differently by, for
14
example, affording self-represented
litigants
latitude
and
making
allowances, being lenient and solicitous,
or giving them every consideration. For
example, the West Virginia Supreme
Court of Appeals explained: The
fundamental tenet that the rules of
procedure should work to do substantial
justice, . . . commands that judges
painstakingly strive to insure that no
person’s cause or defense is defeated
solely by reason of their unfamiliarity
with procedural or evidentiary rules....
Cases should be decided on the merits,
and to that end, justice is served by
reasonably accommodating all parties,
whether represented by counsel or
not
Variations.
At
least
14
jurisdictions have revised and expanded
the model provision....
The Maryland code explains: ... A
judge’s obligation under Rule 2.2 to
remain fair and impartial does not
preclude the judge from making
reasonable accommodations to protect a
self-rep resented litigant’s right to be
heard,.... jcr-fall-2014.pdf (ncsc.org).
2. The First Court of Appeal’s Decisions is
inconsistent with, and in Conflict, with IFs Own
Decisions
Appeal Court's decision lacks uniformity of
Court's Decisions, applying strict compliance against
15
Porter, but not against Respondents/Other Litigants.
See, Jon v. Dinwiddie, No. 07-10-00308-CV, 2011 WL
3629182, at *2 (Tex. App.—Amarillo Aug. 18, 2011,
no pet.) (forty-six page handwritten brief of prisoner);
Foster v. Comal Cnty. Sheriff, No. 03-08‘00539-CV,
2009 WL 2476652, at *2 (Tex. App.—Austin Aug. 13,
2009, no pet.) (handwritten brief of prisoner); Belle v.
State, 543 S.W.3d 871, 880 (Tex. App.—Houston
[14th Dist.] 2018, no pet.) (dissent) (“[Prisoner] has
filed a handwritten brief in this court. Appellant's
lack of legal knowhow makes some of his arguments
hard to discern and his brief challenging to process.”).
Porter’s appeal was dismissed mechanically
under the rules without any consideration of its
merits or contents. It may have been noncompliant in
formal ways, but substantively it presented cogent
arguments and helpful citations to legal authorities
showing that she deserved relief. However, her
arguments were never reviewed because the Court
chose form over substance to deny her constitutional
right of appeal and due process of law.
II. ISSUE OF WIDE APPLICATION AND
NATIONAL IMPORTANCE
This affects a large number of Litigants, a
substantial portion of the economy, and all of the Pro
Se Litigants that the law traditionally seeks to
protect and is supposed to protect, as the number of
Cases filed and appealed by Pro Se Litigants have
increased dramatically over the years, and is of
national importance. Since the Supreme Court is
responsible for interpreting the law and defending
the Constitution, this Case is of major importance
16
because the Supreme Court must assure that laws
follow and are not overriding the Constitution.
III.THERE IS REVERSIBLE LEGAL ERROR
Porter’s initial brief was rejected by appeal
court. She made the numerous requested corrections,
thinking she met the standards, as mentioned above.
The court could understand Porter’s argument and
make a reasonable decision but still acted arbitrarily
and capriciously, and rejected her brief (after Porter
paid for an Appeal, and borrowed more money to add
records to her Appeal Court Case). Thinking the
Justice System would work to bring Justice to Porter,
she spent over $78,000.00 of borrowed money from
this situation with Respondents.
Regardless of whether or not their decision
complies with the Texas notion of Due Process, it was
not adequate to afford Porter her Federal Right of Due
Process. This writ should be granted because the
Appeal Court’s decision infringes upon Porter’s
Federal Constitutional Right of Due Process and
effectively denied it through unreasonable
restrictions. Limitations on Constitutional Rights
must be reasonable, and some are forbidden. It is only
under reasonable Time, Place, and Manner
restrictions. They are restricting the ’’manor” in
which Porter exercises her Right of Appeal in Texas,
which is Unduly Restrictive, whereas they are
unfairly applying their own Rules and acted
arbitrarily to their own Rules because their own Rules
do say “in the Interest of Justice, they can accept a
different form of Brief. Appeal court’s briefing
standards were too harshly applied and imposed an
17
unnecessarily high standard unlikely to be met by a
Pro Se Litigant.
A. Applicable Legal Standard
Courts are to construe the Texas Rules of
Appellate Procedure reasonably, yet liberally, so that
the right to appeal is not lost by imposing
requirements not absolutely necessary to effectuate
the purpose of a rule. Republic Underwriters Ins. Co.
v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004);
Verburgt v. Dorner, 959 S.W.2d 615, 616-617 (Tex.
1997).
The rules expressly require courts to construe
briefing rules liberally. See TEX. R. APP. P. 38.9.
Accordingly, appellate briefs are to be construed
reasonably so as to preserve the right to appellate
review. El Paso Nat. Gas v. Minco Oil & Gas, Inc., 8
S.W.3d 309, 316 (Tex. 1999) (“[W]e liberally construe
issues presented to obtain a just, fair, and equitable
adjudication of the rights of the litigants.”).
The Texas Rules of Appellate Procedure control
the required contents and organization for an
appellant's brief. See TEX. R. APP. P. 38.1. An
appellate brief is “meant to acquaint the court with
the issues in a case and to present argument that will
enable the court to decide the case ....” Id. R. 38.9.
Therefore, an appellant's brief must contain “a clear
and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”
Id. R. 38.l(i).
This requirement is not satisfied by merely
uttering brief conclusory statements unsupported by
legal citations. Sweed v. City of El Paso, 195 S.W.3d
784, 786 (Tex. App.-El Paso 2006, no pet.). A brief
18
must explain how the law that is cited is applicable to
the facts of the case. Hernandez v. Hernandez, 318
S.W.3d 464, 466 (Tex. App.-El Paso 2010, no pet.);
San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323,
338 (Tex. App.-Houston [14th Dist.] 2005, no pet.);
Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—
Amarillo 2003, pet. denied),' Nguyen v. Kosnoski, 93
S.W.3d 186, 188 (Tex. App.-Houston [14th Dist.]
2002, no pet.).
A point of error unsupported by citation of any
legal authority presents nothing for the court to
review. Marsh v. Wallace, 924 S.W.2d 423, 425
(Tex.App. A ustin 1996, no writ)', Richard v.
Cornerstone Constructors, Inc., 921 S.W.2d 465, 469
(Tex.App.-Houston [1st Dist.] 1996, writ denied).
It is the appellant's burden to discuss his
assertions of error, and “we have no duty—or even
right—to perform an independent review of the record
and applicable law to determine whether there was
error.” Hernandez, 318 S.W.3d at 466; see 2218Bryan
Street, Ltd. v. City of Dallas, 175 S.W.3d 58, (Tex.
App-Dallas 2005, pet. denied).
When an appellant's brief fails to contain a
clear and concise argument for the contentions made
with appropriate citations to authorities, the
appellate court is not responsible for doing the legal
research that might support a party's contentions.
Bolling v. Farmers Branch Indep. School Dist., 315
S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet). If
courts were to do so, they would be abandoning their
role as judges and assuming the role of advocate for
that party. Id.
Thus, litigants are required to substantially
comply with the appellate rules. See TEX. R. APP. P.
19
38.9/ Harkins v. Dever Nursing Home, 999 S.W.2d
571, 573 (Tex. App.-Houston [14th Dist.], 1999, no
pet). Further, an appeal may be dismissed where the
appellant has failed to comply with a requirement of
the appellate rules, a court order, nor a notice from
the clerk requiring a response or action within a
specified time. See TEX. R. APP. P. 42.3(c).
If appeal court determines that the briefing
rules have been flagrantly violated, it may require a
brief to be amended, supplemented, or redrawn. TEX.
R. APP. P. 38.9(a),' see id. R. 44.3 (“A court of appeals
must not affirm or reverse a judgment or dismiss an
appeal for formal defects or irregularities in appellate
procedure without allowing reasonable time to correct
or amend defects or irregularities.”).
A reasonable time is given to an appellant
when he is provided with an opportunity to amend his
brief. See Fredonia State Bank v. General Am. Life
Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). If the
appellant files another brief that does not comply with
the rules of appellate procedure, the appellate court
may strike the brief, prohibit the party from filing
another, and proceed as if the party had failed to file
a brief. TEX. R. APP. P. 38.9(a). Pursuant to Texas
Rule of Appellate Procedure 38.8(a), where an
appellant has failed to file a brief, the appellate court
may dismiss the appeal for want of prosecution. Id. R.
38.8(a) (addressing formal defects).
B. Application of the Rules by the First Court of
Appeals
While dismissal under Rule 38.9(a) is not
mandatory, Porter notes that the practice in the
appeal courts appears to be automatic dismissal after
20
a single chance to amend (whether taken or not)
without consideration of whether the brief affords a
reasonable opportunity to review the proceedings.
This is true whether the court has received no
response at all to its notice of nonconformance,1 or has
received one or more amended briefs.2
1 See, Garcia v. Garcia, No. 13-12-00503-CV, 2013 WL 656819,
at *1 (Tex. App.—Corpus Christi-Edinburg Feb. 21, 2013, no
pet.) (request for waiver of appendix requirement denied and
appeal dismissed without discussion of sufficiency of contents of
brief); Salas v. Moreno, No. 13-13-00498-CV, 2014 WL 1007782,
at *1 (Tex. App.—Corpus Christi-Edinburg Mar. 13, 2014, no
pet.) (one-paged brief contents not considered); Read v. Patel,
No. 13-16-00539-CV, 2017 WL 2570041, at *1 (Tex. App.—
Corpus Christi-Edinburg Mar. 2, 2017, no pet.); Jones v.
Quarterman, No. 13-11‘00463‘CV, 2012 WL 506408, at *1 (Tex.
App.—Corpus Christi-Edinburg Feb. 16, 2012, no pet.); Jones v.
Quarterman, No. 13-11-00463-CV, 2012 WL 506408, at *1 (Tex.
App.—Corpus Christi-Edinburg Feb. 16, 2012, no pet.) (no
appendix but no review of the briefs contents); Eight Thousand,
One Hundred & Twenty & 00/100 Dollars in U.S. Currency v.
State, No. 13-20-00319-CV, 2021 WL 3777147, at *1 (Tex. App.—
Corpus Christi-Edinburg Aug. 26, 2021, no pet.).
2 White v. Harvest Credit Mgmt. V, No. 14-04-00349-CV, 2004
WL 2297367, at *1 (Tex. App.—Houston [14th Dist.] Oct. 14,
2004, no pet.) (“appellant has failed to make any legal arguments
to support reversal of the judgment, and the brief contains no
citations to the record or to legal authorities”, but no discussion
of contents); Keel v. Minshew, No. 14-22-00173-CV, 2022 WL
4243709, at *1 (Tex. App.—Houston [14th Dist.] Sept. 15, 2022,
no pet. h.) (same); Boyd v. Spann, No. 13-21-00358-CV, 2022 WL
1251054, at *1 (Tex. App.—Corpus Christi-Edinburg Apr. 28,
2022, no pet.) (asking for a second amended brief but contents
not examined); Singh v. Bank ofAm., N.A., No. 13-13'00406-CV,
2013 WL 5970894, at *1 (Tex. App.—Corpus Christi-Edinburg
Nov. 7, 2013, no pet.) (affording three opportunities to amend
nonconforming brief but no examination of contents); Escalante
v. UTMB, No. 13-12-00742-CV, 2013 WL 2948417, at *1 (Tex.
21
The rules also provide a less drastic remedy
than dismissal that appears rarely used, if ever, by
the courts of appeal. That remedy is provided in rule
38.9 (b) addressing substantive defects. “If the court
determines, either before or after submission, that the
case has not been properly presented in the briefs, or
that the law and authorities have not been properly
cited in the briefs, the court may postpone
submission, require additional briefing, and make
any other order necessary for a satisfactory
submission of the case.” TEX. R. APP. P. 38.9(b).
Porter has found no instance of this remedy
applied by the courts of appeal even where
substantive defects are recognized. See, Whitaker v.
Guillen, No. 13-21-00267-CV, 2022 WL 1412329, at *1
(Tex. App.—Corpus Christi-Edinburg May 5, 2022,
no pet.) (noting formal and substantive defects, but
applying only formal defect remedy); Obleton v.
Guzman, No. 13-16-00200-CV, 2016 WL 7011582, at
*2 (Tex. App.—Corpus Christi-Edinburg Dec. 1,
2016, no pet.) (same).
Thus, the reported cases show lack of
consideration of the merits of a brief that fails to meet
formal standards even though the rules authorize the
courts to accept briefs in “another form” in the
interests of justice. As applied, the courts are using
the rule to clear their dockets of time-consuming
appeals rather than to do substantial justice. The
court does not necessarily become advocates when it
App.—Corpus Christi-Edinburg June 13, 2013, pet. dism’d
w.o.j'.) (two opportunities,' no examination); Plummer v. Reeves,
93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet. denied)
(third brief still noncompliant, but examination of contents).
22
takes time to understand a nonconforming brief
written by non-lawyers.
Porter’s brief is no exception to this practice.
Her amended brief might be wordy, but it clearly sets
out points of error, cites applicable legal authorities,
and cites to the record to support her arguments.
Porter also moved the court for leave to file a
nonconforming brief, but merely granted more time to
file a conforming brief. Porter v. Kennard Law PC, No.
01-22-00153-CV, 2022 WL 11413164, at *2 (Tex.
App.—Houston [1st Dist.] Oct. 20, 2022, no pet. h.).
The court based its dismissal of Porter’s appeal
on lack of a conforming appendix, even though the
clerk’s records contained all the required materials. It
also relied on the lack of a proof of service, rather than
requiring Porter to provide the missing proof.
The court also wrongly stated that the
“appellate briefing requirements are mandatory”, id.
at *4, when its remedies under Rule 9.4 are
discretionary (“may”) and where Rule 9.4 explicitly
allows the court to accept a brief in “another form” in
the interests of justice.
While the court recited that “[a]n appellate
brief is meant to acquaint the court with the issues in
a case and to present argument that will enable the
court to decide the case,” id. at *3, it failed to examine
how the amended brief suffered in these aspects in
specific terms other than to describe the brief as
“rambling, disjointed, and difficult to follow.” Id. at *6.
Simply, the court excused itself from giving
Porter’s arguments any serious consideration because
the task appeared more wordy than usual.
23
Additionally, Porter notes that courts have
accepted nonconforming briefs, again, see, Jon v.
Dinwiddie, No. 07-10-00308-CV, 2011WL 3629182, at
*2 (Tex. App.—Amarillo Aug. 18, 2011, no pet.) (fortysix page handwritten brief of prisoner); Foster v.
Comal Cnty. Sheriff, No. 03-08-00539-CV, 2009 WL
2476652, at *2 (Tex. App.—Austin Aug. 13, 2009, no
pet.) (handwritten brief of prisoner); Belle v. State,
543 S. W. 3d 871, 880 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (dissent) (“[Prisoner] has filed a
handwritten brief in this court. Appellant's lack of
legal knowhow makes some of his arguments hard to
discern and his brief challenging to process.”).
CONCLUSION
For the above reasons, Porter respectfully
requests this Court to find that the First Court of
Appeals violated her Fifth, Fourteenth Constitutional
Rights of Due Process. Porter didn’t even get Due
Process in Trial Court). A writ of certiorari should
issue to review the judgment and opinion of First
Court of Appeals and provide guidance to the lower
courts on applying briefing rules to preserve
appellants’ constitutional right of appeal.
Respectfully submitted,
/s/ Linda Porter
Linda Porter
PO Box 2861
Spring, Texas 77383
(713) 294-7646
In Pro Pria Personam
lp orter 12 3@y ahoo .com
24
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.