                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


LESLYE CURNUTT, ON BEHALF OF                     §
PUCKETT RANCHES, LTD., AND
ALAN ROBBINS, ON BEHALF OF                       §
MUNNA, LTD.,                                                       No. 08-15-00014-CV
                                                 §
                             Appellants,                              Appeal from the
                                                 §
v.                                                              83rd Judicial District Court
                                                 §
                                                                  of Pecos County, Texas
CONOCOPHILLIPS COMPANY,                          §
                                                                        (TC# 6838)
                               Appellee.         §

                                           OPINION

       This appeal arises out of a 2010 oil and gas dispute, in which Appellants (collectively

Curnutt) alleged that Appellee (Conoco) failed to pay royalties as required by the lease,

subsequent amendments to the lease, and the Texas Relinquishment Act. After several years of

inactivity, the trial court, on its own motion, set the case for a dismissal hearing to be held on

October 9, 2014. After considering Curnutt’s arguments and motion to retain the case on the

court’s docket, the trial court dismissed the case for want of prosecution. Curnutt does not

challenge the denial of the motion to retain or its dismissal order. Rather, the issues on appeal

relate to the Pecos County Clerk’s alleged mishandling of their electronically submitted motion

to reinstate which ultimately led the trial court to subsequently overrule the motion by operation

of law without holding a second hearing. For the reasons that follow, we affirm the judgment.
                                  FACTUAL BACKGROUND

       On April 26, 2010, Curnutt filed suit against Conoco alleging breach of a 1948 State of

Texas oil and gas lease granted under the Relinquishment Act, in addition to other statutory

claims. The State was not a party to the lawsuit. The parties engaged in discovery that

concluded in February of 2011. After the close of discovery, the case sat on the trial court’s

docket for three years without any significant action. The case summary contained in the record

reflects that Curnutt filed a change of address in 2011, and made no filings in 2012. In 2013, the

sole entry in the case relates to the appearance of additional counsel. On September 4, 2014, the

trial court set the case for a status hearing and Curnutt appeared through counsel. Then, on its

own motion, the trial court set the case “for a HEARING on DISMISSAL FOR LACK OF

PROSECUTION” on October 9, 2014. Curnutt filed a verified motion to retain the case on the

court’s docket two days before the dismissal hearing.

       At the dismissal hearing, all parties appeared through counsel. Curnutt stated that all of

their arguments were already contained in their motion to retain and there is no indication from

the record that the trial court limited the scope of the matters to be presented to the trial court at

the dismissal hearing. Conoco highlighted the four-year timeline of the case and responded to

the motion to retain by arguing that Curnutt failed to offer sufficient probative evidence to show

the case had been prosecuted with due diligence or that there was a reasonable excuse for delay.

On the same day it heard the dismissal hearing, the trial court entered its order of dismissal

without prejudice approximately four years and five months after case was first filed.

       Curnutt then filed a verified motion to reinstate. The parties vigorously dispute when the

motion was filed with the Pecos County District Clerk. Curnutt asserts that the motion was

electronically filed on November 7, 2014. The district clerk accepted the filing on November 21,



                                                  2
2014. Curnutt claims that at some point during the process of filing, the district clerk’s office

deleted or otherwise removed the motion from the trial court’s docket. Both parties agree on one

thing: the district clerk manually re-accepted the filing on January 21, 2015, and this is also

reflected in the record before us. Because of this alleged mistake that occurred in the district

clerk’s office, the trial court never held a hearing on the motion and it was overruled by

operation of law on December 23, 2014.

       Curnutt raises three issues on appeal related to this alleged mistake that occurred in the

district clerk’s office: (1) whether the district clerk’s failure to deliver a copy of the motion to

reinstate to the district judge, resulting in the motion being overruled by operation of law,

constitutes reversible error; (2) whether the trial court’s failure to hold a hearing on the motion to

reinstate, resulting in the motion being overruled by operation of law, constitutes reversible

error; and (3) whether the trial court permitting the motion to reinstate to be overruled by

operation of law without holding a hearing constitutes reversible error.

                                            ANALYSIS

       The Texas Rules of Appellate Procedure control the required contents and organization

for an appellant’s brief. See TEX.R.APP.P. 38.1. One of those requirements is the brief must

concisely state all issues or points presented for review. Id. An issue is sufficient if it directs the

reviewing court’s attention to the error about which the complaint is made. Martinez v. El Paso

County, 218 S.W.3d 841, 844 (Tex.App.--El Paso 2007, pet. struck). The brief must also contain

a clear and concise argument, including appropriate citations to authority and the record. See

TEX.R.APP.P. 38.1(h). 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.). Failure to cite legal authority or provide substantive analysis



                                                  3
of the legal issue presented results in waiver of the complaint. Martinez, 218 S.W.3d at 844,

citing Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex.App.--El Paso 1997, no writ).

       It is Curnutt’s burden to discuss specific assertions of error. Martinez, 218 S.W.3d at

844. An appellate court has no duty, or even the right, to perform an independent review of the

record and applicable law to determine whether error occurred. Id. Were we to do so, we would

be abandoning our role as neutral adjudicators and become an advocate for that party. Id., citing

Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.App.--Amarillo 2003, pet. denied). In the review

of a civil case, we do not have the discretion to consider an issue not raised in the appellant’s

brief, even if the ends of justice so require. Martinez, 218 S.W.3d at 844, citing Bankhead v.

Maddox, 135 S.W.3d 162, 163-64 (Tex.App.--Tyler 2004, no pet.).

       We initially note that while Curnutt raised three issues for review, the argument section

of the brief is approximately two pages long and only recites Texas Rule of Civil Procedure 165a

and its relevant sub-sections. No relevant legal authority or substantive analysis directs us to the

real crux of complaints. It would be inappropriate for us to attempt to re-draft and articulate

what we believe Cornutt may have intended to raise as error. Martinez, 218 S.W.3d at 845. Due

to the failure to comply with the requirements set forth in Rule 38 of the Texas Rules of

Appellate Procedure, Cornutt has waived the issues on appeal. See Fredonia State Bank v.

General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). Even had the issues been properly

briefed, they are without merit. Assuming without deciding that error occurred, it was harmless

because the failure to hold a hearing on the motion to reinstate did not cause the rendition of an

improper judgment or prevent a proper presentation of the appeal. TEX.R.APP.P. 44.1(a); see

also Dueitt v. Arrowhead Lakes Property Owners, Inc., 180 S.W.3d 733, 741 (Tex.App.--Waco

2005, pet. denied).



                                                 4
        Our sister court in Waco has held that the failure to hold an oral hearing on a motion to

reinstate does not constitute harmful error provided that the parties have had notice and an

opportunity to present their arguments and evidence at an oral hearing on the motion to dismiss.

See Dueitt, 180 S.W.3d at 740-41; Preslar v. Garcia, No. 03-13-00499-CV, 2014 WL 824201, at

*4 (Tex.App.--Austin Feb. 26, 2014, no pet.)(mem. op.)(adopting the Dueitt court’s analysis

concerning harmless error). In Dueitt, the trial court held an oral hearing on the motion to

dismiss, but did not hold another oral hearing on the motion to reinstate. Id. at 740-41. The

dismissed parties similarly argued that they were entitled to an oral hearing on their motion to

reinstate pursuant to Rule 165a. Id. The court noted that the “motion to reinstate is the failsafe

to prevent cases . . . from being improperly dismissed.” Id. at 741, citing Binner v. Limestone

Cnty., 129 S.W.3d 710, 713 (Tex.App.--Waco 2004, pet. denied). The Waco court further

observed that other appellate courts have held that “participation in a motion to reinstate cures

any due process error in the original hearing on the motion to dismiss,” and thus ensures that the

dismissed party has received due process. Dueitt, 180 S.W.3d at 741; see, e.g., Manning v.

North, 82 S.W.3d 706, 715 (Tex.App.--Amarillo 2002, no pet.); Texas Sting, Ltd. v. R.B. Foods,

Inc., 82 S.W.3d 644, 648 (Tex.App.--San Antonio 2002, pet. denied); Jimenez v. Transwestern

Property, Co., 999 S.W.2d 125, 129 (Tex.App.--Houston [14th Dist.] 1999, no pet.); see also

Rad v. Black, No. 03-07-00574-CV, 2008 WL 2777320, at *8 (Tex.App.--Austin Jul. 17, 2008,

no pet.)(mem. op.). The court reasoned that participation in an oral hearing on a motion to

dismiss would similarly cure any due process concerns raised by failing to hold a hearing on a

motion to reinstate. Dueitt, 180 S.W.3d at 741, citing Manning, 82 S.W.3d at 715; Texas Sting,

Ltd., 82 S.W.3d at 648-49.1 Therefore, while the trial court had not held an oral hearing on the


1
 Where a trial court does not hold an oral hearing on either the motion to dismiss or the motion to reinstate, then
due process concerns still remain. See Preslar, 2014 WL 824201, at *3 n.4; Enriquez v. Livingston, 400 S.W.3d

                                                        5
motion to reinstate, “all due process concerns were eliminated” because the dismissed parties

still received “adequate notice and substance of the hearing on the motion to dismiss, and had the

opportunity to respond at the hearing, which is all that due process requires.” Dueitt, 180

S.W.3d at 741, citing Smith v. McKee, 145 S.W.3d 299, 302 (Tex.App.--Fort Worth 2004, no

pet.); Texas Sting, Ltd., 82 S.W.3d at 648. Moreover, the Waco court discussed how the

dismissed parties did not offer any new arguments or indicate the discovery of any new evidence

in their motion to reinstate. Id. Because the failure to hold a hearing did not cause the rendition

of an improper judgment, or prevent the dismissed parties from presenting their case on appeal,

any error was harmless. Id.

        We find Dueitt persuasive. Cornutt does not dispute the receipt of proper notice and a

full opportunity to present arguments and evidence at the October 9, 2014 hearing on the motion

to dismiss. Contrary to what Cornutt insists in the reply brief, the motion to reinstate offers no

new arguments, and contains no additional or newly discovered evidence. Based on the record

before us, we cannot conclude that the failure to hold a hearing on the motion to reinstate

probably caused the rendition of an improper judgment or prevented a proper presentation of the

case on appeal. We thus conclude that error, if any, in failing to hold a hearing on the motion to

reinstate was harmless. See TEX.R.APP.P. 44.1(a); Dueitt, 180 S.W.3d at 741. We overrule all

three issues for review and affirm the judgment of the trial court.




May 25, 2016
                                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.


610, 616-20 (Tex.App.--Austin 2013, pet. denied)(holding trial court not required to hold oral hearing on motion to
dismiss, but abused its discretion in failing to hold oral hearing on motion to reinstate).

                                                        6
