Rhett Webster Pease v. First National Bank, Giddings, Texas; and Lee County Tax Assessor Collector, No. 03-07-00141-CV (Tex.App. - Austin, Feb. 21, 2008)(Opinion by Justice Pemberton ) (appeal dwopped) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Rhett Webster Pease v. First National Bank, Giddings, Texas; and Lee County Tax Assessor Collector
Appeal from 335th District Court of Lee County
DISMISSED FOR WANT OF PROSECUTION
M E M O R A N D U M O P I N I O N
On March 7, 2007, appellant Rhett Webster Pease filed a notice of appeal from the district court's order granting partial summary judgment in favor of appellee First National Bank, Giddings, Texas. On May 15, 2007, this Court notified Pease that the clerk's record had not been timely filed. We requested that Pease submit a status report regarding this appeal. On May 29, 2007, Pease filed a status report stating that he had "removed this action to federal court" and asking us to abate this appeal "until such time as it is remanded." Pease did not file a Notice of Removal. See 28 U.S.C.S. § 1446(d). On June 4, 2007, we informed Pease that notice of removal was required before we would abate his appeal.
In response to our letter, Pease sent this Court a "Plaintiff's Notice of Removal and Joinder" in an action filed in the United States District Court for the District of Columbia styled "Rhett Webster Pease v. Office of Child Support Division." On December 12, 2007, this Court informed Pease that this document did not comply with the removal requirements of section 1446. We further informed Pease that if we did not receive proper documentation related to the removal of this cause, or proof of designation of the Clerk's Record and payment of same, by December 28, 2007, we would dismiss his appeal for want of prosecution. See Tex. R. App. P. 37.3(b).
On December 27, 2007, Pease filed a copy of the "Report and Recommendation of the United States Magistrate Judge" in the federal action styled "Crae Robert Pease, Plaintiff v. First National Bank, Giddings; Billy Morgan; T. Mark Rogstadt; Reva Towslee-Corbett; and Rodney Meyer, Defendants." The report indicates that Pease has filed related but separate actions in state and federal court. Thus, there has been no "removal" of this cause to federal court. See 28 U.S.C.S. § 1446(a).
On January 4, 2008, we instructed Pease that he must provide this Court with proof of designation of the Clerk's Record and payment of same on or before Monday, January 14, 2008, and that failure to do so would result in the dismissal of this appeal for want of prosecution. The deadline has passed, and we have not received a response from Pease. We have received confirmation from the district clerk that Pease has neither designated nor paid for the Clerk's Record. Therefore, we dismiss this appeal for want of prosecution.
________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: February 21, 2008
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Sunday, March 2, 2008
Saturday, February 16, 2008
DWOP Opinion in Tx. DFPS case by Justice Ken Law
Fontenot vs. Texas Department of Family and Protective Services, No. 03-07-00719-CV (Tex.App.- Austin, Feb. 8, 2008)(Ken Law) (DFPS, TDFPS, CPS, child protection)
Arlene Fontenot and Robert Fontenot v. Texas Department of Family and Protective Services
Appeal from 33rd District Court of San Saba County
FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
NO. 8661, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants Arlene Fontenot and Robert Fontenot filed a notice of appeal on December 18, 2007. The district clerk notified this Court that appellants have neither paid, nor made payment arrangements for the clerk's record. By letter of January 15, 2008, this Court notified appellants that they needed to submit a status report concerning the appeal by January 25, 2008, or the appeal would be dismissed for want of prosecution. See Tex. R. App. P. 37.3(d). To date, appellants have not responded. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: February 8, 2008
Arlene Fontenot and Robert Fontenot v. Texas Department of Family and Protective Services
Appeal from 33rd District Court of San Saba County
FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
NO. 8661, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants Arlene Fontenot and Robert Fontenot filed a notice of appeal on December 18, 2007. The district clerk notified this Court that appellants have neither paid, nor made payment arrangements for the clerk's record. By letter of January 15, 2008, this Court notified appellants that they needed to submit a status report concerning the appeal by January 25, 2008, or the appeal would be dismissed for want of prosecution. See Tex. R. App. P. 37.3(d). To date, appellants have not responded. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: February 8, 2008
Sunday, February 3, 2008
Appeal dwopped on Appellee's motion
DISMISSED ON APPELLEE'S MOTION: Opinion by Justice Puryear (Before Justices Patterson, Puryear and Henson)
03-07-00459-CV
Kevin Allan Smith v. Dale Lee Jaschke--Appeal from County Court at Law No. 4 of Williamson County
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 05-1556-CC2-4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The trial court signed its judgment on March 8, 2007, and appellant timely filed his notice of appeal on June 6. After some delay, the clerk's record was filed on October 9, making appellant's brief due on November 8. On November 26, this Court received appellant's motion for extension of time to file his brief, which was mailed on November 13. Appellant requested until November 28 to file his brief, but neglected to include a certificate of conference, which we requested on November 26. On November 29, we received from appellee a "Certificate of Non-Conference," stating that appellant did not confer with appellee before submitting his motion for extension of time but that appellee would have agreed to the extension if appellant had asked. Appellee also alleged that appellant had mischaracterized the underlying proceedings. Appellant never responded to appellee's filing or to this Court's request for a certificate of conference, see Tex. R. App. P. 10.1(a)(5), nor has he proffered a brief for filing. On January 11, 2008, appellee filed a motion to dismiss for want of prosecution. To date, appellant has not responded to appellee's motion or communicated with this Court in any form since filing the incomplete motion for extension of time. We therefore grant appellee's motion and dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellee's Motion
Filed: January 31, 2008
03-07-00459-CV
Kevin Allan Smith v. Dale Lee Jaschke--Appeal from County Court at Law No. 4 of Williamson County
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 05-1556-CC2-4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The trial court signed its judgment on March 8, 2007, and appellant timely filed his notice of appeal on June 6. After some delay, the clerk's record was filed on October 9, making appellant's brief due on November 8. On November 26, this Court received appellant's motion for extension of time to file his brief, which was mailed on November 13. Appellant requested until November 28 to file his brief, but neglected to include a certificate of conference, which we requested on November 26. On November 29, we received from appellee a "Certificate of Non-Conference," stating that appellant did not confer with appellee before submitting his motion for extension of time but that appellee would have agreed to the extension if appellant had asked. Appellee also alleged that appellant had mischaracterized the underlying proceedings. Appellant never responded to appellee's filing or to this Court's request for a certificate of conference, see Tex. R. App. P. 10.1(a)(5), nor has he proffered a brief for filing. On January 11, 2008, appellee filed a motion to dismiss for want of prosecution. To date, appellant has not responded to appellee's motion or communicated with this Court in any form since filing the incomplete motion for extension of time. We therefore grant appellee's motion and dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellee's Motion
Filed: January 31, 2008
Friday, October 12, 2007
DWOP: Appeal was years late - Costs of court issue did not prevent judgment from becoming final
In this appeal from a franchise tax refund case decided years earlier, the Third Court of Appeals determines it lacks appellate jurisdiction because the trial court's plenary power had long expired. Unresolved issue regarding award of costs of court did not constitute unadjudicated claim for affirmative relieve and did not operate the prevent the judgment from becoming final and appealable.
Saudi Refining, Inc. v. Susan Combs, successor-in-interest to Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, successor-in-interest to John Cornyn, Attorney General of the State of Texas, (Tex.App.- Austin, Oct. 12, 2007)(Opinion by Chief Justice Law)(DWOP, late appeal, franchise tax refund suit)(Before Chief Justice Law, Justices Puryear and Waldrop)
Appeal from 201st District Court of Travis County
Disposition: Dismissed for Want of Jurisdiction (DWOP)
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-99-004227, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal arises from a franchise tax refund case that was fully and finally decided on cross motions for summary judgment in 2003. Although the final judgment had been entered in 2003, the case remained pending in the district clerk's records. Because the parties took no further action, it was placed on the dismissal docket for want of prosecution in 2006. The district court signed an order retaining the case in 2007. Ultimately, because that retention order was signed after the court's plenary power had expired, the case was dismissed for want of jurisdiction.
Appellant Saudi Refining, Inc. filed its notice of appeal from the 2007 order dismissing the case for want of jurisdiction. Appellees Susan Combs, Successor-in-Interest to Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas; and Greg Abbott, Successor-in-Interest to John Cornyn, Attorney General of the State of Texas filed a motion to dismiss the appeal for want of jurisdiction. We will grant the motion.
In 2002, the parties filed traditional motions for summary judgment pursuant to Texas Rule of Civil Procedure 166a. Appellant's motion specified that it sought judgment on its "entire claim against the Comptroller." On January 23, 2003, the district court signed an order granting summary judgment in favor of appellees and denying appellant's motion. Both parties considered this order to have been final and appealable. No appeal was taken.
Almost four years later, the parties received a notice of intent to dismiss the case for want of prosecution. Appellant filed a motion to retain, noting that "the Court apparently d[id] not consider the matter to be completely resolved." The district court granted the motion to retain on March 27, 2007.
The next month, appellees filed a motion to dismiss the case for want of jurisdiction because the court's order retaining the case on the docket was signed four years after its plenary power expired. See Tex. R. Civ. P. 306a, 329b. Appellant responded that the 2003 order was not final because there was no determination of the court costs prayed for by appellees. On June 15, 2007, after concluding that the 2003 order disposed of all claims and parties and was final, the district court signed an order dismissing the case for want of jurisdiction. On July 5, 2007, appellant filed this appeal, which appellees have sought to dismiss.
In response to appellees' motion to dismiss, appellant renews its argument that the 2003 order is not final because it does not address court costs. But a trial court is not required to assess costs for a judgment to be final. Straza v. Friedman, Driegert & Hsueh, L.L.C., 124 S.W.3d 404, 406 (Tex. App.--Dallas 2003, pet. denied); City of Marshall v. Gonzales, 107 S.W.3d 799, 803 (Tex. App.--Texarkana 2003, no pet.); Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex. App.--Dallas 2002, no pet.) (citing City of West Lake Hills v. State, 466 S.W.2d 722, 727 (Tex. 1971) (concluding that trial court retained jurisdiction for thirty days over judgment that did not adjudicate costs)). A summary judgment is final for purposes of appeal if it "actually disposes of every pending claim and party" before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Here, the 2003 order disposed of all parties who were before the court and all claims, thus it was final. "[A]ppellate courts will not review judgments in cases where no actual controversy exists between the parties other than a determination of costs." Metal Enters., Inc. v. Don Love, Inc., 562 S.W.2d 892, 893 (Tex. Civ. App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.) (citing City of West Univ. Place v. Martin, 123 S.W.2d 638 (1939)); see also Beyer, 91 S.W.3d at 904 (noting that "a request for costs is not itself a 'claim for affirmative relief'").
Appellant's notice of appeal, filed more than four years after the district court's final order on the cross motions for summary judgment, did not invoke our jurisdiction. See Tex. R. App. P. 26.1, 26.3. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Salas v. State Farm Mut. Auto. Ins. Co., 226 S.W.3d 692, 697 (Tex. App.--El Paso 2007, no pet.).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Dismissed for Want of Jurisdiction
Filed: October 12, 2007
Saudi Refining, Inc. v. Susan Combs, successor-in-interest to Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, successor-in-interest to John Cornyn, Attorney General of the State of Texas, (Tex.App.- Austin, Oct. 12, 2007)(Opinion by Chief Justice Law)(DWOP, late appeal, franchise tax refund suit)(Before Chief Justice Law, Justices Puryear and Waldrop)
Appeal from 201st District Court of Travis County
Disposition: Dismissed for Want of Jurisdiction (DWOP)
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-99-004227, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This appeal arises from a franchise tax refund case that was fully and finally decided on cross motions for summary judgment in 2003. Although the final judgment had been entered in 2003, the case remained pending in the district clerk's records. Because the parties took no further action, it was placed on the dismissal docket for want of prosecution in 2006. The district court signed an order retaining the case in 2007. Ultimately, because that retention order was signed after the court's plenary power had expired, the case was dismissed for want of jurisdiction.
Appellant Saudi Refining, Inc. filed its notice of appeal from the 2007 order dismissing the case for want of jurisdiction. Appellees Susan Combs, Successor-in-Interest to Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas; and Greg Abbott, Successor-in-Interest to John Cornyn, Attorney General of the State of Texas filed a motion to dismiss the appeal for want of jurisdiction. We will grant the motion.
In 2002, the parties filed traditional motions for summary judgment pursuant to Texas Rule of Civil Procedure 166a. Appellant's motion specified that it sought judgment on its "entire claim against the Comptroller." On January 23, 2003, the district court signed an order granting summary judgment in favor of appellees and denying appellant's motion. Both parties considered this order to have been final and appealable. No appeal was taken.
Almost four years later, the parties received a notice of intent to dismiss the case for want of prosecution. Appellant filed a motion to retain, noting that "the Court apparently d[id] not consider the matter to be completely resolved." The district court granted the motion to retain on March 27, 2007.
The next month, appellees filed a motion to dismiss the case for want of jurisdiction because the court's order retaining the case on the docket was signed four years after its plenary power expired. See Tex. R. Civ. P. 306a, 329b. Appellant responded that the 2003 order was not final because there was no determination of the court costs prayed for by appellees. On June 15, 2007, after concluding that the 2003 order disposed of all claims and parties and was final, the district court signed an order dismissing the case for want of jurisdiction. On July 5, 2007, appellant filed this appeal, which appellees have sought to dismiss.
In response to appellees' motion to dismiss, appellant renews its argument that the 2003 order is not final because it does not address court costs. But a trial court is not required to assess costs for a judgment to be final. Straza v. Friedman, Driegert & Hsueh, L.L.C., 124 S.W.3d 404, 406 (Tex. App.--Dallas 2003, pet. denied); City of Marshall v. Gonzales, 107 S.W.3d 799, 803 (Tex. App.--Texarkana 2003, no pet.); Thompson v. Beyer, 91 S.W.3d 902, 904 (Tex. App.--Dallas 2002, no pet.) (citing City of West Lake Hills v. State, 466 S.W.2d 722, 727 (Tex. 1971) (concluding that trial court retained jurisdiction for thirty days over judgment that did not adjudicate costs)). A summary judgment is final for purposes of appeal if it "actually disposes of every pending claim and party" before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Here, the 2003 order disposed of all parties who were before the court and all claims, thus it was final. "[A]ppellate courts will not review judgments in cases where no actual controversy exists between the parties other than a determination of costs." Metal Enters., Inc. v. Don Love, Inc., 562 S.W.2d 892, 893 (Tex. Civ. App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.) (citing City of West Univ. Place v. Martin, 123 S.W.2d 638 (1939)); see also Beyer, 91 S.W.3d at 904 (noting that "a request for costs is not itself a 'claim for affirmative relief'").
Appellant's notice of appeal, filed more than four years after the district court's final order on the cross motions for summary judgment, did not invoke our jurisdiction. See Tex. R. App. P. 26.1, 26.3. Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Salas v. State Farm Mut. Auto. Ins. Co., 226 S.W.3d 692, 697 (Tex. App.--El Paso 2007, no pet.).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Dismissed for Want of Jurisdiction
Filed: October 12, 2007
Wednesday, October 3, 2007
DWOP - In the Interest of L. M. H., No. 03-07-00298-CV(Tex App.- Austin Oct. 3, 2007)(Opinion by Justice Puryear (Before Justices Patterson, Puryear and Pemberton)
Appeal from 169th District Court of Bell County
Appeal from 169th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 220,516-C, HONORABLE MICHAEL J. NELSON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant filed his notice of appeal on May 8, 2007. The clerk's record was filed on May 16. On August 20, 2007, the Clerk of this Court sent appellant notice that his brief was overdue and informed him that unless he filed a motion for an extension of time by August 31, the appeal would be dismissed for want of prosecution. Appellant has not responded to this or other communications from this Court. We therefore dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Dismissed for Want of Prosecution
Filed: October 3, 2007
NO. 220,516-C, HONORABLE MICHAEL J. NELSON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant filed his notice of appeal on May 8, 2007. The clerk's record was filed on May 16. On August 20, 2007, the Clerk of this Court sent appellant notice that his brief was overdue and informed him that unless he filed a motion for an extension of time by August 31, the appeal would be dismissed for want of prosecution. Appellant has not responded to this or other communications from this Court. We therefore dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear, and Pemberton
Dismissed for Want of Prosecution
Filed: October 3, 2007
Tuesday, October 2, 2007
DWOPPED Sep. 26, 2007 DISMISSED FOR WANT OF JURISDICTION:
(Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00408-CV
Maxine Andrea Mendez v. David W. F. Carr--Appeal from 146th District Court of Bell County
(Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00408-CV
Maxine Andrea Mendez v. David W. F. Carr--Appeal from 146th District Court of Bell County
Friday, September 14, 2007
No Brief - No Appellate Review: King v. King (Tex.App.- Austin, Sep. 11, 2007)
Christopher Jay King v. Nicole Carter King, No. 03-07-00035-CV (Tex.App.- Austin, Sep. 11, 2007)(Opinion by Justice Patterson)(DWOP)(Before Justices Patterson, Puryear and Pemberton)
Disposition: Dismissed for Want of Prosecution
Appeal from County Court at Law of Burnet County
FROM THE COUNTY COURT AT LAW OF BURNET COUNTY,
NO. 23017, HONORABLE W. R. SAVAGE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Christopher Jay King filed his notice of appeal on January 23, 2007, and the appellate record was filed the same day. On July 31, 2007, the clerk of this Court sent appellant notice that his brief was overdue and that his appeal would be dismissed for want of prosecution if he did not respond to this Court by August 10, 2007. To date, appellant has not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Prosecution
Filed: September 11, 2007
Disposition: Dismissed for Want of Prosecution
Appeal from County Court at Law of Burnet County
FROM THE COUNTY COURT AT LAW OF BURNET COUNTY,
NO. 23017, HONORABLE W. R. SAVAGE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Christopher Jay King filed his notice of appeal on January 23, 2007, and the appellate record was filed the same day. On July 31, 2007, the clerk of this Court sent appellant notice that his brief was overdue and that his appeal would be dismissed for want of prosecution if he did not respond to this Court by August 10, 2007. To date, appellant has not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Prosecution
Filed: September 11, 2007
Tuesday, August 21, 2007
Trial court should have DWOPPED case, rather than entering a default judgment against no-show plaintiff
Austin Court of Appeals holds that court should not have reached the merits and reforms judgment to reflect a dismissal for want of prosecution (DWOP).
Edith Fontenot v. Margaret Hanus, Michael Hanus, and William S. Carver, III, No. 03-05-00551-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Puryear )(default judgment improperly granted for plaintiff's failure to appear)(Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN403516, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Edith Fontenot, representing herself pro se, sued appellees Margaret Hanus, Michael Hanus, and William S. Carver, III, seeking a judgment declaring that she had the right to use a road on appellees' property to access her land. The case was set for a jury trial on May 23, 2005, but on May 11, 2005, appellees filed a motion for continuance and to strike the May 23 setting, stating that Fontenot had not met the requirements for a jury trial or paid the jury fee and that the case had not been referred to pretrial mediation as required by the Travis County Local Rules. On May 19, a hearing was held on the motion, and the trial court denied the motion for continuance; it appears that Fontenot paid the jury fee that same day.
On May 23, Fontenot did not appear at the 9:00 a.m. docket call, and the trial court signed a default judgment against her, denying Fontenot access to her property across appellees' property.
On June 22, thirty days after the default judgment was signed, Fontenot filed a motion for new trial, asserting that she had arrived late to court on May 23, only to learn that the docket had been called promptly at 9:00 a.m. and that a default judgment had been granted in her case.
She explained that she misunderstood the docket-call process and asked to have her case reinstated. Appellees filed a response to Fontenot's motion, and after a hearing, the trial court denied Fontenot's motion for new trial. It is from the denial of her motion for new trial that Fontenot appeals, complaining largely that the trial court erred in refusing to grant her a new trial. (1) We modify the trial court's default judgment to reflect instead a dismissal for want of prosecution and affirm the judgment as modified.
The trial court entered a "default judgment" purporting to decide the merits of the case. See Tex. R. Civ. P. 239. However, when a plaintiff fails to appear, the trial court may not enter a default judgment against her and may only dismiss the cause without prejudice. Freeman v. Freeman, 327 S.W.2d 428, 431 (Tex. 1959) ("The law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit."); Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948) ("It is a well-established rule that when a plaintiff fails to appear and prosecute his case, the court can not try the plaintiff's cause of action, but the only remedy is to dismiss the same."); State v. Herrera, 25 S.W.3d 326, 328 (Tex. App.--Austin 2000, no pet.).
Because Fontenot failed to appear at the May 23 docket call, the trial court could have dismissed her case for want of prosecution. See Tex. R. Civ. P. 165a(1). The court was not, however, authorized to enter a default judgment against her. Therefore, we modify the default judgment to reflect a dismissal under rule 165a(1). See Tex. R. App. P. 43.2(b), 43.3.
As for Fontenot's issues on appeal, we note that Fontenot's brief does not comply with the rules of appellate procedure. Aside from referring to Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), for its discussion of when a motion for new trial should be granted, she cites no authority and presents virtually no argument. We recognize that Fontenot is representing herself pro se, and we therefore will attempt to read her brief liberally to address the arguments she presents. However, pro se litigants must comply with the same procedural rules followed by represented parties, and we cannot hold pro se litigants to a different standard than applied to represented parties. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Fontenot lists nine "issues presented," but does not present argument on all issues, instead focusing what little argument she makes on whether the trial court should have granted her motion for new trial. However, Fontenot did not present any evidence before the trial court to support her assertions that her failure to appear was unintentional and not the result of conscious indifference, either in an affidavit attached to her motion or through sworn testimony at the hearing. Thus, the trial court did not abuse its discretion in denying Fontenot's motion for new trial. See Director, St. Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994).
As for Fontenot's unbriefed issues, we will briefly address them as best we understand them. Fontenot asserts that the trial court used inconsistent docket call procedures, but does not explain how the trial court erred and has not shown any inconsistent practices. (2) Instead, the hearing before the trial court shows that Fontenot admitted to misunderstanding the docket call process. Fontenot further complains that the trial court should not have allowed appellees to rely on an unpublished case from this Court. However, the case to which appellees referred, Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc., is a published opinion. See 143 S.W.3d 538 (Tex. App.--Austin 2004, no pet.). (3) As for Fontenot's complaints related to the trial court's allowing appellees to present evidence of Fontenot's alleged conduct during the lawsuit and its refusal to allow her to present evidence of appellees' conduct, she has not briefed this issue or shown that the trial court erred in its management of the hearing on her motion for new trial.
Finally, Fontenot asserts that the trial court erred in telling her she could not refile her lawsuit, which she states amounted to a dismissal with prejudice. Because we have modified the judgment to reflect a dismissal for want of prosecution, rather than a default judgment, any error in the trial court's statement has been addressed.
The trial court erred in granting a default judgment in favor of appellees, rather than simply dismissing the suit under rule 165(a). We therefore modify the judgment to reflect a dismissal for want of prosecution. Fontenot has not shown reversible error on the trial court's part, and we therefore affirm the judgment as modified.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Modified and, as Modified, Affirmed
Filed: August 17, 2007
1. Appellees have not filed a brief in this case.
2. Fontenot has attached to her brief an affidavit attempting to explain what she characterizes as inconsistent practices. However, she did not present this affidavit before the trial court, and we therefore may not consider it. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.--Houston [14th Dist.] 2003, no pet.). We note, however, that the affidavit does not show any improper or inconsistent practices by the trial court.
3. Under the rules of appellate procedure, opinions are no longer "published" or "unpublished." Instead, they are designated "memorandum opinions" or "opinions." See Tex. R. App. P. 47.2(a).
Edith Fontenot v. Margaret Hanus, Michael Hanus, and William S. Carver, III, No. 03-05-00551-CV (Tex.App.- Austin, Aug. 17, 2007)(Opinion by Justice Puryear )(default judgment improperly granted for plaintiff's failure to appear)(Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 201st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN403516, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Edith Fontenot, representing herself pro se, sued appellees Margaret Hanus, Michael Hanus, and William S. Carver, III, seeking a judgment declaring that she had the right to use a road on appellees' property to access her land. The case was set for a jury trial on May 23, 2005, but on May 11, 2005, appellees filed a motion for continuance and to strike the May 23 setting, stating that Fontenot had not met the requirements for a jury trial or paid the jury fee and that the case had not been referred to pretrial mediation as required by the Travis County Local Rules. On May 19, a hearing was held on the motion, and the trial court denied the motion for continuance; it appears that Fontenot paid the jury fee that same day.
On May 23, Fontenot did not appear at the 9:00 a.m. docket call, and the trial court signed a default judgment against her, denying Fontenot access to her property across appellees' property.
On June 22, thirty days after the default judgment was signed, Fontenot filed a motion for new trial, asserting that she had arrived late to court on May 23, only to learn that the docket had been called promptly at 9:00 a.m. and that a default judgment had been granted in her case.
She explained that she misunderstood the docket-call process and asked to have her case reinstated. Appellees filed a response to Fontenot's motion, and after a hearing, the trial court denied Fontenot's motion for new trial. It is from the denial of her motion for new trial that Fontenot appeals, complaining largely that the trial court erred in refusing to grant her a new trial. (1) We modify the trial court's default judgment to reflect instead a dismissal for want of prosecution and affirm the judgment as modified.
The trial court entered a "default judgment" purporting to decide the merits of the case. See Tex. R. Civ. P. 239. However, when a plaintiff fails to appear, the trial court may not enter a default judgment against her and may only dismiss the cause without prejudice. Freeman v. Freeman, 327 S.W.2d 428, 431 (Tex. 1959) ("The law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit."); Smock v. Fischel, 207 S.W.2d 891, 892 (Tex. 1948) ("It is a well-established rule that when a plaintiff fails to appear and prosecute his case, the court can not try the plaintiff's cause of action, but the only remedy is to dismiss the same."); State v. Herrera, 25 S.W.3d 326, 328 (Tex. App.--Austin 2000, no pet.).
Because Fontenot failed to appear at the May 23 docket call, the trial court could have dismissed her case for want of prosecution. See Tex. R. Civ. P. 165a(1). The court was not, however, authorized to enter a default judgment against her. Therefore, we modify the default judgment to reflect a dismissal under rule 165a(1). See Tex. R. App. P. 43.2(b), 43.3.
As for Fontenot's issues on appeal, we note that Fontenot's brief does not comply with the rules of appellate procedure. Aside from referring to Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), for its discussion of when a motion for new trial should be granted, she cites no authority and presents virtually no argument. We recognize that Fontenot is representing herself pro se, and we therefore will attempt to read her brief liberally to address the arguments she presents. However, pro se litigants must comply with the same procedural rules followed by represented parties, and we cannot hold pro se litigants to a different standard than applied to represented parties. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Fontenot lists nine "issues presented," but does not present argument on all issues, instead focusing what little argument she makes on whether the trial court should have granted her motion for new trial. However, Fontenot did not present any evidence before the trial court to support her assertions that her failure to appear was unintentional and not the result of conscious indifference, either in an affidavit attached to her motion or through sworn testimony at the hearing. Thus, the trial court did not abuse its discretion in denying Fontenot's motion for new trial. See Director, St. Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994).
As for Fontenot's unbriefed issues, we will briefly address them as best we understand them. Fontenot asserts that the trial court used inconsistent docket call procedures, but does not explain how the trial court erred and has not shown any inconsistent practices. (2) Instead, the hearing before the trial court shows that Fontenot admitted to misunderstanding the docket call process. Fontenot further complains that the trial court should not have allowed appellees to rely on an unpublished case from this Court. However, the case to which appellees referred, Limestone Construction, Inc. v. Summit Commercial Industrial Properties, Inc., is a published opinion. See 143 S.W.3d 538 (Tex. App.--Austin 2004, no pet.). (3) As for Fontenot's complaints related to the trial court's allowing appellees to present evidence of Fontenot's alleged conduct during the lawsuit and its refusal to allow her to present evidence of appellees' conduct, she has not briefed this issue or shown that the trial court erred in its management of the hearing on her motion for new trial.
Finally, Fontenot asserts that the trial court erred in telling her she could not refile her lawsuit, which she states amounted to a dismissal with prejudice. Because we have modified the judgment to reflect a dismissal for want of prosecution, rather than a default judgment, any error in the trial court's statement has been addressed.
The trial court erred in granting a default judgment in favor of appellees, rather than simply dismissing the suit under rule 165(a). We therefore modify the judgment to reflect a dismissal for want of prosecution. Fontenot has not shown reversible error on the trial court's part, and we therefore affirm the judgment as modified.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Modified and, as Modified, Affirmed
Filed: August 17, 2007
1. Appellees have not filed a brief in this case.
2. Fontenot has attached to her brief an affidavit attempting to explain what she characterizes as inconsistent practices. However, she did not present this affidavit before the trial court, and we therefore may not consider it. See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 342 n.2 (Tex. App.--Houston [14th Dist.] 2003, no pet.). We note, however, that the affidavit does not show any improper or inconsistent practices by the trial court.
3. Under the rules of appellate procedure, opinions are no longer "published" or "unpublished." Instead, they are designated "memorandum opinions" or "opinions." See Tex. R. App. P. 47.2(a).
Monday, August 13, 2007
Appeal dismissed; appellant did not pay for clerk's record
Thomas Terry, Jr. and derivatively Cardiac Services of Texas, Inc. and Cardiac Services of Austin, L.P. v. Darrell Sargent; Cardiac Products of Texas, Inc.; Cardiostaff Corporation; and Larry Lawson, No. 03-07-00096-CV (Tex.App.- Austin, Aug. 13, 2007)(Opinion by Justice Henson)(Before Chief Justice Law, Justices Puryear and Henson)
Appeal from 98th District Court of Travis County
FROM THE DISTRHONORABLE W. JEANNE MEURER, JUDGE PRESIDING
ICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. GN304065,
M E M O R A N D U M O P I N I O N
Appellants filed a notice of appeal in the trial court on February 7, 2007; the notice was filed in this Court on February 9. On March 20, this Court received a letter from the office of the Travis County District Clerk notifying us that appellants had not made payment for the clerk's record. On April 9, this Court sent appellants a letter requesting a status report regarding the appeal by April 19 and warning that failure to comply with the request would result in dismissal for want of prosecution. Appellants have made no response to the letter. On May 21, 2007, the office of the district clerk informed this Court that appellants still have not made arrangements to pay for the clerk's record. On June 26, 2007, the office of the district clerk again informed this Court that arrangements for payment still have not been made. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 37.3(b).
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Prosecution
Filed: July 3, 2007
Appeal from 98th District Court of Travis County
FROM THE DISTRHONORABLE W. JEANNE MEURER, JUDGE PRESIDING
ICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. GN304065,
M E M O R A N D U M O P I N I O N
Appellants filed a notice of appeal in the trial court on February 7, 2007; the notice was filed in this Court on February 9. On March 20, this Court received a letter from the office of the Travis County District Clerk notifying us that appellants had not made payment for the clerk's record. On April 9, this Court sent appellants a letter requesting a status report regarding the appeal by April 19 and warning that failure to comply with the request would result in dismissal for want of prosecution. Appellants have made no response to the letter. On May 21, 2007, the office of the district clerk informed this Court that appellants still have not made arrangements to pay for the clerk's record. On June 26, 2007, the office of the district clerk again informed this Court that arrangements for payment still have not been made. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 37.3(b).
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Prosecution
Filed: July 3, 2007
Thursday, July 5, 2007
Kim v. United Central Bank (Tex.App.- Austin, Jul. 5, 2007)
Kim vs. United Central Bank (Tex. App.- Austin, July 5, 2007)(Puryear)(DWOJ, ILA, no interlocutory jurisdiction over order on motion to transfer venue)
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Puryear
Before Chief Justice Law, Justices Puryear and Henson
03-07-00223-CV
John Koo Hyun Kim v. United Central Bank and Texas Department of Banking
Appeal from 250th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-06-004538, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant John Koo Hyun Kim filed a notice of appeal, seeking to appeal from the trial court's order granting appellee United Central Bank's motion to transfer venue. We have reviewed the clerk's record filed in this cause and because we lack jurisdiction over this interlocutory appeal, we dismiss the cause for want of jurisdiction. See Tex. R. App. P. 42.3(a).
Generally, courts of appeals may exercise jurisdiction of appeals from final orders or judgments only. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) ("A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree."). There are certain statutory exceptions to this rule, which explicitly provide for an interlocutory appeal from a non-final order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2006) (listing permissible interlocutory appeals). An appeal from a trial court's venue determination may not be reviewed by interlocutory appeal. Id. § 15.064(a) (West 2002) (no interlocutory appeal from trial court's determination of venue); Electronic Data Sys. Corp. v. Pioneer Elecs. (USA) Inc., 68 S.W.3d 254, 257 (Tex. App.--Fort Worth 2002, no pet.).
Appellant seeks to appeal from the trial court's interlocutory order transferring venue from Travis County to Dallas County. We may not consider this complaint in an interlocutory appeal. Therefore, we must dismiss this cause for want of jurisdiction. See Tex. R. App. P. 42.3(a).
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: July 5, 2007
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Puryear
Before Chief Justice Law, Justices Puryear and Henson
03-07-00223-CV
John Koo Hyun Kim v. United Central Bank and Texas Department of Banking
Appeal from 250th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-06-004538, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant John Koo Hyun Kim filed a notice of appeal, seeking to appeal from the trial court's order granting appellee United Central Bank's motion to transfer venue. We have reviewed the clerk's record filed in this cause and because we lack jurisdiction over this interlocutory appeal, we dismiss the cause for want of jurisdiction. See Tex. R. App. P. 42.3(a).
Generally, courts of appeals may exercise jurisdiction of appeals from final orders or judgments only. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) ("A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree."). There are certain statutory exceptions to this rule, which explicitly provide for an interlocutory appeal from a non-final order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2006) (listing permissible interlocutory appeals). An appeal from a trial court's venue determination may not be reviewed by interlocutory appeal. Id. § 15.064(a) (West 2002) (no interlocutory appeal from trial court's determination of venue); Electronic Data Sys. Corp. v. Pioneer Elecs. (USA) Inc., 68 S.W.3d 254, 257 (Tex. App.--Fort Worth 2002, no pet.).
Appellant seeks to appeal from the trial court's interlocutory order transferring venue from Travis County to Dallas County. We may not consider this complaint in an interlocutory appeal. Therefore, we must dismiss this cause for want of jurisdiction. See Tex. R. App. P. 42.3(a).
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: July 5, 2007
Terry v. Sargent (Tex.App- Austin, Jul. 3, 2007)
Terry v. Sargent (Tex.App- Austin, Jul. 3, 2007)(Henson)(DWOP)
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Henson
Before Chief Justice Law, Justices Puryear and Henson)
03-07-00096-CV
Thomas Terry, Jr. and derivatively Cardiac Services of Texas, Inc. and Cardiac Services of Austin, L.P. v. Darrell Sargent; Cardiac Products of Texas, Inc.; Cardiostaff Corporation; and Larry Lawson
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN304065, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants filed a notice of appeal in the trial court on February 7, 2007; the notice was filed in this Court on February 9. On March 20, this Court received a letter from the office of the Travis County District Clerk notifying us that appellants had not made payment for the clerk's record. On April 9, this Court sent appellants a letter requesting a status report regarding the appeal by April 19 and warning that failure to comply with the request would result in dismissal for want of prosecution. Appellants have made no response to the letter. On May 21, 2007, the office of the district clerk informed this Court that appellants still have not made arrangements to pay for the clerk's record. On June 26, 2007, the office of the district clerk again informed this Court that arrangements for payment still have not been made. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 37.3(b).
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Prosecution
Filed: July 3, 2007
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Henson
Before Chief Justice Law, Justices Puryear and Henson)
03-07-00096-CV
Thomas Terry, Jr. and derivatively Cardiac Services of Texas, Inc. and Cardiac Services of Austin, L.P. v. Darrell Sargent; Cardiac Products of Texas, Inc.; Cardiostaff Corporation; and Larry Lawson
Appeal from 98th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN304065, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants filed a notice of appeal in the trial court on February 7, 2007; the notice was filed in this Court on February 9. On March 20, this Court received a letter from the office of the Travis County District Clerk notifying us that appellants had not made payment for the clerk's record. On April 9, this Court sent appellants a letter requesting a status report regarding the appeal by April 19 and warning that failure to comply with the request would result in dismissal for want of prosecution. Appellants have made no response to the letter. On May 21, 2007, the office of the district clerk informed this Court that appellants still have not made arrangements to pay for the clerk's record. On June 26, 2007, the office of the district clerk again informed this Court that arrangements for payment still have not been made. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 37.3(b).
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Prosecution
Filed: July 3, 2007
Tuesday, June 26, 2007
SWEPI LP v. Railroad Comm'n of Tex. (Tex.App.- Austin, Jun. 18, 2007)
SWEPI LP v. RR. Comm'n of Texas (Tex.App.- Austin, June 18, 2007)(DWOP)
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Waldrop
Before Justices Patterson, Pemberton and Waldrop
03-06-00599-CV
SWEPI LP v. Railroad Commission of Texas and Betty Eyhorn
Appeal from 345th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-06-003322, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The reporter's record was filed in this accelerated appeal on February 12, 2007. Appellant's brief was due to be filed by March 5, 2007. See Tex. R. App. P. 38.6(a). By notice dated April 2, 2007, this Court's clerk notified appellant that its brief was overdue and that this Court would dismiss this appeal unless appellant filed a brief or a motion for extension by April 12, 2007. Appellant has filed neither and there has been no other activity in this case. This appeal is dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 18, 2007
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Waldrop
Before Justices Patterson, Pemberton and Waldrop
03-06-00599-CV
SWEPI LP v. Railroad Commission of Texas and Betty Eyhorn
Appeal from 345th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-06-003322, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The reporter's record was filed in this accelerated appeal on February 12, 2007. Appellant's brief was due to be filed by March 5, 2007. See Tex. R. App. P. 38.6(a). By notice dated April 2, 2007, this Court's clerk notified appellant that its brief was overdue and that this Court would dismiss this appeal unless appellant filed a brief or a motion for extension by April 12, 2007. Appellant has filed neither and there has been no other activity in this case. This appeal is dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 18, 2007
Republic of Texas v. State of Texas (Tex.App.-Austin, Jun. 15, 2007)
Republic of Texas v. State of Texas (Tex.App.-Austin, Jun. 15, 2007)
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Patterson
Before Justices Patterson, Pemberton and Waldrop)
03-07-00104-CV
Republic of Texas, et al. v. The State of Texas, et al.
Appeal from 345th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-96-007354, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants filed notice of appeal on February 8, 2007, and the appellate record was filed the same day. On March 12, 2007, the clerk of this Court sent appellants notice that their brief was overdue and that this appeal would be dismissed for want of prosecution if appellants did not respond to this Court by April 13, 2007. To date, appellants have not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 15, 2007
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Patterson
Before Justices Patterson, Pemberton and Waldrop)
03-07-00104-CV
Republic of Texas, et al. v. The State of Texas, et al.
Appeal from 345th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-96-007354, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants filed notice of appeal on February 8, 2007, and the appellate record was filed the same day. On March 12, 2007, the clerk of this Court sent appellants notice that their brief was overdue and that this appeal would be dismissed for want of prosecution if appellants did not respond to this Court by April 13, 2007. To date, appellants have not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 15, 2007
LeMaster v. Source1 Solutions (Tex.App.- Austin, Jun. 15, 2007)
LeMaster v. Source1 Solutions (Tex.App.- Austin, Jun. 15, 2007)(DWOP)
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Puryear
Before Chief Justice Law, Justices Puryear and Henson
03-06-00667-CV
Andrew LeMaster v. Source1 Solutions and Dana Richie
Appeal from 345th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-05-003905, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Andrew LeMaster filed his notice of appeal on November 1, 2006. Since that filing, appellant sought and received four extensions of time to file his appellant's brief. On May 15, 2007, we granted his fourth and final motion, ordering the brief filed no later than May 29. We cautioned appellant that if his brief was not timely filed, the appeal would be dismissed. To date, appellant has not filed his brief. Therefore, we dismiss his appeal for want of prosecution. See Tex. R. App. P. 42.3(b); see also Tex. R. App. P. 42.3(c) (dismissal for failure to comply with rules or court order).
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Prosecution
Filed: June 15, 2007
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Puryear
Before Chief Justice Law, Justices Puryear and Henson
03-06-00667-CV
Andrew LeMaster v. Source1 Solutions and Dana Richie
Appeal from 345th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-05-003905, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Andrew LeMaster filed his notice of appeal on November 1, 2006. Since that filing, appellant sought and received four extensions of time to file his appellant's brief. On May 15, 2007, we granted his fourth and final motion, ordering the brief filed no later than May 29. We cautioned appellant that if his brief was not timely filed, the appeal would be dismissed. To date, appellant has not filed his brief. Therefore, we dismiss his appeal for want of prosecution. See Tex. R. App. P. 42.3(b); see also Tex. R. App. P. 42.3(c) (dismissal for failure to comply with rules or court order).
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed for Want of Prosecution
Filed: June 15, 2007
Sells v. Texas DFPS (Tex.App.- Austin, Jun. 15, 2007)
Sells v. Texas DFPS (Tex.App.- Austin, Jun. 15, 2007)(DWOP)
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Patterson
Before Justices Patterson, Pemberton and Waldrop
03-06-00349-CV
Dennis Sells v. Texas Department of Family and Protective Services
Appeal from 20th District Court of Milam County
FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. 30,332, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Dennis Sells filed notice of appeal on June 20, 2006. The clerk's record was filed on June 21, 2006, and the reporter's record was filed on November 10, 2006. Appellant's brief was due on November 30, 2006. The clerk of this Court sent notice to appellant's last known address that his brief was overdue and that this appeal would be dismissed for want of prosecution if appellant did not respond to this Court by May 17, 2007. To date, appellant has not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 15, 2007
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Patterson
Before Justices Patterson, Pemberton and Waldrop
03-06-00349-CV
Dennis Sells v. Texas Department of Family and Protective Services
Appeal from 20th District Court of Milam County
FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. 30,332, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Dennis Sells filed notice of appeal on June 20, 2006. The clerk's record was filed on June 21, 2006, and the reporter's record was filed on November 10, 2006. Appellant's brief was due on November 30, 2006. The clerk of this Court sent notice to appellant's last known address that his brief was overdue and that this appeal would be dismissed for want of prosecution if appellant did not respond to this Court by May 17, 2007. To date, appellant has not responded to this Court's notice. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 42.3(b), (c).
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 15, 2007
Monday, June 25, 2007
Hutchins v. TDCJ (Tex.App.- Austin, Jun. 11, 2007)
Hutchins v. TDCJ [Texas Department of Criminal Justice] (Tex.App.- Austin, Jun. 11, 2007)(DWOP)
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Pemberton
(Before Justices Patterson, Pemberton and Waldrop)
03-06-00739-CV
Roosevelt Hutchins, Jr., TDCJ #662815 and Phillip A. Dick v. State of Texas, Orla Sharp and Valencia Ann Pollard
Appeal from 200th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-05-002014, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants Roosevelt Hutchins, Jr., and Phillip A. Dick appeal from the district court's dismissal of their claims against appellees the State of Texas, Orla Sharp, and Valencia Ann Pollard. On February 1, 2007, appellants filed a motion for extension of time to file their brief. We granted the motion on February 2, extending the deadline for filing a brief until March 8, 2007. On April 3, 2007, this Court notified appellants that their brief was overdue and that if they failed to file a brief or reasonably explain the failure to file a brief by April 13, we would dismiss the appeal. See Tex. R. App. P. 38.8(a)(1). The deadline has passed and we have not received either a brief or a response from appellants. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3
____________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 11, 2007
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Pemberton
(Before Justices Patterson, Pemberton and Waldrop)
03-06-00739-CV
Roosevelt Hutchins, Jr., TDCJ #662815 and Phillip A. Dick v. State of Texas, Orla Sharp and Valencia Ann Pollard
Appeal from 200th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-05-002014, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellants Roosevelt Hutchins, Jr., and Phillip A. Dick appeal from the district court's dismissal of their claims against appellees the State of Texas, Orla Sharp, and Valencia Ann Pollard. On February 1, 2007, appellants filed a motion for extension of time to file their brief. We granted the motion on February 2, extending the deadline for filing a brief until March 8, 2007. On April 3, 2007, this Court notified appellants that their brief was overdue and that if they failed to file a brief or reasonably explain the failure to file a brief by April 13, we would dismiss the appeal. See Tex. R. App. P. 38.8(a)(1). The deadline has passed and we have not received either a brief or a response from appellants. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3
____________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: June 11, 2007
Macready v. Macready (Tex.App.-Austin, Jun. 11, 2007)
Macready v. Macready (Tex.App.-Austin, Jun. 11, 2007)(Pemberton)(DWOP)
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Pemberton
(Before Chief Justice Law, Justices Pemberton and Henson)
03-04-00792-CV
Eva Macready v. Thomas Macready
Appeal from 27th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 202,671-A, HONORABLE SUE LYKES, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Eva Macready appeals from a final decree of divorce, primarily asserting
that the district court's decision to award custody of her child to appellee Thomas Macready was not in the child's best interest. The final divorce decree was signed on September 23, 2004. On February 23, 2005, we advised Macready that the reporter's record was overdue. On March 27, 2007, this Court notified Macready that we could not consider the merits of her appeal without a reporter's record of the proceedings in the district court. We further informed Macready that unless we received the reporter's record within 60 days from the receipt of our March 27 letter, we would dismiss her appeal. The deadline has passed and we have not received the reporter's record. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3.
____________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Henson
Dismissed for Want of Prosecution
Filed: June 11, 2007
DISMISSED FOR WANT OF PROSECUTION: Opinion by Justice Pemberton
(Before Chief Justice Law, Justices Pemberton and Henson)
03-04-00792-CV
Eva Macready v. Thomas Macready
Appeal from 27th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 202,671-A, HONORABLE SUE LYKES, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Eva Macready appeals from a final decree of divorce, primarily asserting
that the district court's decision to award custody of her child to appellee Thomas Macready was not in the child's best interest. The final divorce decree was signed on September 23, 2004. On February 23, 2005, we advised Macready that the reporter's record was overdue. On March 27, 2007, this Court notified Macready that we could not consider the merits of her appeal without a reporter's record of the proceedings in the district court. We further informed Macready that unless we received the reporter's record within 60 days from the receipt of our March 27 letter, we would dismiss her appeal. The deadline has passed and we have not received the reporter's record. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3.
____________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Henson
Dismissed for Want of Prosecution
Filed: June 11, 2007
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