Unreported / Non-Citable
Background
Donald Bernard Giello appealed from a final default judgment rendered by the 457th District Court of Montgomery County, Texas, in trial cause number 25-12-20606. Giello filed his notice of appeal on May 15, 2026, naming Liberty County Mutual Insurance Company as appellee. The opinion does not describe the underlying dispute, the claims asserted, or the amount of the default judgment; it addresses only the procedural fate of the appeal itself.
On August 20, 2026, the Clerk of the Ninth Court of Appeals notified the parties that Giello had not filed an appellate brief. The clerk advised that the appeal would be submitted without briefs unless, by Monday, August 31, 2026, Giello filed both a brief and a motion to extend the briefing deadline. The court expressly warned Giello that if the appeal were submitted without briefs, the court could dismiss it for want of prosecution. Giello did not respond with either a brief or a motion for extension.
On September 29, 2026, the clerk notified the parties that the appeal would be submitted to the court on Tuesday, October 20, 2026, without briefs and without oral argument, citing Texas Rule of Appellate Procedure 39.8, which permits submission on the record without oral argument. The appeal was so submitted, and the court issued its memorandum opinion on November 5, 2026.
The Court’s Holding
The court dismissed the appeal for want of prosecution. The dispositive fact, in the court’s words, was that “Giello has not filed a brief in his appeal assigning any error to any of the trial court’s rulings.” Because an appellant’s failure to file a brief leaves the court with no assigned errors to review, the court declined to reach the merits of the underlying default judgment and instead terminated the appeal on procedural grounds.
The court cited three provisions of the Texas Rules of Appellate Procedure in support of the dismissal. Rule 38.8(a)(1) addresses the consequences of an appellant’s failure to file a brief; Rule 42.3(b) authorizes dismissal for want of prosecution when an appellant fails to comply with the rules or with a court directive; and Rule 43.2(f) authorizes the court to dismiss the appeal as a form of disposition. The court also noted Rule 39.8 in connection with the submission of the case without oral argument. The dismissal was issued as a per curiam memorandum opinion before a panel of Justices Johnson, Wright, and Chambers.
The disposition is narrow and procedural. The court did not affirm the default judgment on the merits, did not evaluate any evidentiary or legal challenge to it, and did not announce any new rule of law. The holding rests entirely on the appellant’s failure to brief any assignment of error after receiving express notice and an opportunity to cure.
Key Takeaways
- An appellant who fails to file any brief assigning error to the trial court’s rulings risks outright dismissal for want of prosecution under Texas Rules of Appellate Procedure 38.8(a)(1), 42.3(b), and 43.2(f).
- The Ninth Court gave express warning and a cure deadline: the clerk’s August 20, 2026 notice told Giello the appeal would be submitted without briefs unless he filed a brief and a motion to extend by August 31, 2026, and warned that dismissal could follow.
- The dismissal is procedural, not merits-based; the court did not review or endorse the underlying default judgment, which remains intact by operation of the dismissal rather than by appellate affirmance on any substantive ground.
- The case was submitted without oral argument under Rule 39.8 after the clerk’s September 29, 2026 notice set submission for October 20, 2026.
Why It Matters
This memorandum opinion is a routine but instructive application of Texas appellate practice rules governing unbriefed appeals. For practitioners, it underscores that the Ninth Court will follow through on express warnings: when an appellant ignores a clerk’s notice setting a deadline to file a brief and a motion to extend, dismissal for want of prosecution is the predictable result, even in an appeal from a substantial final judgment such as a default judgment.
The opinion also illustrates the limited precedential footprint of such dispositions. Because the court resolved the case solely on the appellant’s failure to prosecute, it decided nothing about the correctness of the trial court’s default judgment or any substantive issue in the underlying litigation. Attorneys counseling clients on perfecting appeals should treat briefing deadlines and clerk’s notices as jurisdictional-adjacent hazards: the failure to respond forfeits appellate review entirely, leaving the trial court’s judgment undisturbed.