Louis J. Cognata and Mona Cognata v. R.W. Johnson Construction Company, Inc., et al.--Appeal from 344th District Court of Chambers County

NUMBER 13-05-234-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_______________________________________________________

LOUIS J. COGNATA AND MONA COGNATA, Appellants,

v.

R. W. JOHNSON CONSTRUCTION COMPANY,

INC., ET AL., Appellees.

_______________________________________________________

On appeal from the 344th District Court

of Chambers County, Texas

_______________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Garza

This cause is before the Court on the record and briefs. Appellants= brief was received and filed on September 21, 2005. Upon review, a panel of the Court found that the case had not been properly presented in the brief filed by appellants. See Tex. R. App. P. 38.1. On January 10, 2006, we issued an order striking appellants= brief and requiring that appellants file a new brief within 15 days. The order included specific instructions requiring that appellants present their issues and arguments clearly and concisely in their brief. See Tex. R. App. P. 38.1(h).

On January 27, 2006, appellants filed a first amended brief with this Court. We have reviewed the first amended brief and find that it suffers the same deficiencies as appellants= original brief. We conclude that appellants= brief flagrantly violates the rules of appellate procedure. See Tex. R. App. P. 39.8(a).

Appellants= brief is exactly 50 pages in length. See Tex. R. App. P. 38.4 (regarding length of briefs). Appellants attempt to raise eight issues, which, as presented, involve a total of 68 sub-issues. The brief is written in largely idiosyncratic shorthand, which renders the arguments and issues practically incomprehensible. Tremendous effort is required simply to understand many of the sentences in the brief because most contain at least one of the Aacronyms@ that appear in the table of acronyms on page Av@ of the brief. In many instances, these so-called acronyms are not acronyms at all. Some are numbers or strings of numerals.[1] Others are Ainitialisms.@[2] See Garner, Bryan A., A Dictionary of Modern Legal Usage 19 (2001).

The second edition of Bryan Garner=s manual on usage, A Dictionary of Modern Legal Usage, provides an informative discussion of these concepts:

[W]e should be aware of the traditional distinction between the two types of abbreviated names. An acronym is made from the initial letters or parts of a phrase or compound term. One ordinarily reads or speaks it as a single word, not letter by letter (e.g., radar = radio detection and ranging). An initialism, by contrast, is made from the initial letters or parts of a phrase or compound term, but is usually pronounced letter by letter, not as a single word (e.g., r.p.m. = revolutions per minute).

Id.

As noted above, various acronyms and initialisms, most of which are originals, pervade appellants= brief. Appellants also use numbers and strings of numerals as abbreviated forms. We do not appreciate this heavy reliance on shorthand notation, nor do we find such briefing proper under the rules of appellate procedure. Garner=s manual on usage expresses some critical views on the use of abbreviations in legal writing which we find particularly well-suited to describe the deficiencies in appellants= brief:

Originally, to be sure, abbreviations were intended to serve the convenience of the reader by shortening names; with their use, cumbersome phrases would not have to be repeated in their entirety. The purported simplifications actually simplified. . . Now, however, many writers seem to have lost sight of this goal: they allow abbreviated names to proliferate in their writing, which quickly becomes a system of hieroglyphs requiring the reader constantly to refer to the original use of the term so that he will understand the significance of the hieroglyphs. It may be thought that this kind of writing is more scholarly than ordinary, straightforward prose. It is not. Rather, it is tiresome and inconsiderate writing; it betrays the writer=s thoughtlessness toward the reader and a fascination with the insubstantial trappings of scholarship.

Id. at 447.

Appellants= brief is 50 pages of Adense and frustrating prose@ primarily because of appellants= extensive use of abbreviated forms. Id. at 19. The brief does not provide a clear and concise presentation of the issues and arguments. See Tex. R. App. P. 38.1(h). Without the use of abbreviated forms, we believe appellants= brief would greatly exceed the 50-page limit specified for appellate briefs. See Tex. R. App. P. 38.4. These are flagrant violations of the appellate rules of procedure. See Tex. R. App. P. 38.9.

Given that we have already afforded appellants a second opportunity to submit a brief that substantially complies with the rules of procedure, an opportunity which was unsuccessful, we now Astrike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.@ See Tex. R. App. P. 38.9(a). The rules of procedure provide that if an appellant=s brief is not timely filed but Aan appellee=s brief is filed, the court may regard that brief as correctly presenting the case and may affirm the trial court=s judgment upon that brief without considering the record.@ See Tex. R. App. P. 38.8(a)(3).

Appellees have filed a brief which we have reviewed. We affirm the judgment of the trial court based on the presentation of the case given in appellees= brief. See id.

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 13th day of April, 2006.

1 For instance, according to the table of acronyms provided by appellants, A661@ means AOPR 94 239 661 County Recorded Easement.@ Another example is A4707,@ which means ABackfill and one 48@ culvert in RWJs= Natural Gully at 4707 Skyline Drive.@ These so-called acronyms are used throughout appellants= brief.

2 One egregious example of the many initialisms found in appellants= brief is ARWJSTRUCT,@ which means, ARWJs=4 CDPs and RWJ designed structures in Natural Gully: Water Diversion Box, 192' long@ culvert (formerly the Water Diversion Box Flood Zone B area), backfill in the Water Diversion Box flood zone B area, 48" culvert series near 4707, RWJ Dam and 2 nearby roads, backfill, land bridges.@