Procrastination Results in Dismissal of Appeal

Although it is not governed by Rule 165a of the Rules of Civil Procedure, dismissal for want of prosecution also occurs on appeal. There may be a certain amount of leniency when it comes to deadline extensions for filing the brief, but procrastination is risky business, as seen in an opinion on DWOP issued by the Austin Court of Appeals today:

M E M O R A N D U M O P I N I O N

Appellant Jay Sandon Cooper's notice of appeal was filed in this Court on July 23, 2008. The cause was stayed for appellant's bankruptcy proceeding on November 19, 2008. On March 10, 2009, we reinstated the cause and informed appellant that his brief was due April 9, 2009. On May 1, we sent appellant notice that his brief was overdue, giving him until May 11 to respond. On May 11, appellant informed this Court by telephone that he was placing a motion for extension of time in the mail that same day; the motion was received by this Court on May 20 and asked for an extension to May 18. On May 22, we granted appellant's motion and on May 29, we sent notice that appellant's brief was overdue, giving him until June 8 to respond. On June 8, we again received a phone call from appellant informing us that he was mailing a motion for extension of time that day; the motion was not received by this Court until June 22, and it asked us to extend the filing deadline to July 6. On June 29, we received correspondence from appellee's counsel informing us that he opposed the most recent motion for extension of time and that he was not contacted by appellant regarding the motion, as represented in appellant's certificate of conference. On July 3, 2009, we ordered that the brief be filed no later than July 10.

On July 16, appellant filed a motion seeking to have the clerk's record supplemented, explaining that he was almost finished with his brief when he realized several documents had been omitted. He said he had submitted a request to the trial court clerk and asked that we "reset" the briefing schedule once the record was supplemented to give him another thirty days. On July 20, we sent appellant a letter stating that the trial court had not received a request for supplementation as represented in appellant's motion and gave him until July 27 to file a copy of his request to the trial court clerk.

We stated that we would allow the record to be supplemented and said, "Once the record is supplemented, your brief will be due ten days later. No further extensions will be granted." The clerk's record was supplemented on July 30, and we sent appellant notice of the supplementation on August 5. Under our July 20 letter, appellant's brief was due August 10, ten days after the record was supplemented. However, even if we allow appellant ten days after we sent our letter informing him of the supplementation, the brief was due no later than August 17.

To date, appellant has not filed his brief. We therefore dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3.

SOURCE: 03-08-00443-CV