Dismissal of appeal for failure to file clerk's record

Appellate Courts may dismiss an appeal for a number of procedural reasons, including failure to make arrangements for filing of the record on appeal (clerk's record), and failure to pay for such record and/or appellate filing fee.

M. R. YOUNG
v.
CITIBANK (SOUTH DAKOTA) N.A.

Court of Appeals of Texas, Eleventh District, Eastland.
Panel[1] consists of: Wright, C.J., McCall, J., and Hill, J.[2]

MEMORANDUM OPINION

PER CURIAM.

This is an appeal from a final summary judgment. The trial court signed the judgment on January 4, 2011. Appellant, Melissa R. Young, has timely filed a notice of appeal. However, neither a clerk's record nor the required filing fee has been filed. We dismiss the appeal for want of prosecution.

The clerk of the trial court has notified this court that appellant has neither filed a written designation specifying the matters to be included in the clerk's record nor made arrangements to pay for the clerk's record. On March 9, 2011, the clerk of this court wrote appellant and requested that she forward proof that she has filed a designation of the clerk's record and made arrangements to pay for the clerk's record by March 21, 2011. The clerk's letter of March 9, 2011, additionally informed appellant that the failure to provide the requested proof by the date indicated could result in the dismissal of this appeal. There has been no response to the clerk's letter of March 9, 2011.

The failure to file the clerk's record appears to be due to appellant's acts and omissions. Therefore, pursuant to TEX. R. APP. P. 37.3(b) and 42.3(b), the appeal is dismissed for want of prosecution.

[1] Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a successor by the governor.

[2] John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

SOURCE: Eastland Court of Appeal
Young v. Citibank (South Dakota) N.A. No. 11-11-00043-CV (Debt suit by Citibank Attorney Allen Adkins). Debtor's appeal dismissed April 28, 2011.

Appeals also subject to DWOP

Courts of Appeals have their own dismissal rule.

After several extensions and warnings, Houston Court of Appeals dismissed case in which pro-se appellant had failed to file appellate brief for want of prosecution. Appeal had been filed more than three years earlier and had been interrupted by a bankruptcy filing.

PER CURIAM MEMORANDUM OPINION

BY HOUSTON's FIRST COURT OF APPEALS

This appeal has been pending since November 2007. In July 2008, the appeal was abated due to bankruptcy. The bankruptcy proceeding was dismissed in January 2009. After notice to the parties, to which the Court received no response, we reinstated and dismissed the appeal for want of prosecution on May 28, 2009. See TEX. R. APP. P. 42.3 (b) (providing that appellate courts may dismiss appeal for want of prosecution after giving notice to all parties).

However, appellant filed a motion for rehearing requesting that the Court withdraw its opinion and judgment of May 28, 2009 and reinstate the appeal, which we granted. The appeal was again reinstated in September 2009.

After rehearing was granted, appellant still failed to file an appellant's brief. The Clerk of this Court again sent the parties notice that appellant's brief had not been filed and the case could be dismissed for want of prosecution anytime after ten days from the date of the notice. Appellant filed a motion for extension of time to file his brief, which we granted, giving appellant until February 21, 2010 to file his brief. Appellant did not file a brief. Appellant ultimately filed a second suggestion of bankruptcy, but public records demonstrate that the bankruptcy referenced by appellant was dismissed by the bankruptcy court in November 2010. We sent appellant another notice that his appellant's brief had not been filed and his appeal could be dismissed for want of prosecution anytime after ten days from the date of the notice. See TEX. R. APP. P. 38.8(a); 42.3(b). In response, appellant did not file a brief but did file a request for an extension of additional time to file his brief. The reasons provided by appellant as necessitating more time do not justify further extension of this appeal after over three years pending without an appellant's brief.

Appellant's motion for extension of time to file appellant's brief is denied.

This appeal is dismissed for want of prosecution.

SOURCE: Houston's First Court of Appeals.
No. 01-07-01041-CV - Dismissed on March 31, 2011

Motion to Reinstate Must Be Verified (Sworn)

Reminder from the Fifth Court of Appeals: Motion to Reinstate dwopped case that is not verified (sworn to) does not extend appellate deadline. Consequences of noncompliance are dire: Untimely attempted appeal dismissed for want of jurisdiction (DWOJ):

PER CURIAM OPINION

Appellant Lakeith Amir-Sharif appeals the trial court's judgment dismissing the case for want of prosecution and the trial court's failure to grant appellant's motion to reinstate.After reviewing the record, we questioned our jurisdiction over this appeal.

Amir-Sharif v. Hawkins, No. 05-08-01388-CV (Tex.App.- Dallas, Oct. 1, 2009)

By letter dated August 31, 2009, we notified appellant of this Court's concern regarding its jurisdiction over this appeal and directed appellant to file a letter brief regarding the jurisdictional question by September 10, 2009 and directed appellee to file any response to appellant's letter brief by September 17, 2009, at which time the Court would resolve the jurisdictional question. Appellant filed a brief on September 21, 2009.

We dismiss this appeal for lack of jurisdiction.

The law is well settled and we therefore issue this memorandum opinion. See Tex. R. Civ. P. 47.1.Pursuant to rule of civil procedure 165a and the court's inherent power, on August 7, 2008 the trial court signed an order of dismissal for want of prosecution for appellant's “having failed to take actions heretofore specified by the Court within the time period prescribed, and for failing to announce for trial scheduled for August 4, 2008.”

On August 21, 2008, appellant filed an unverified “Motion to Reinstate Complaint.” Appellant filed his notice of appeal on October 13, 2008, more than thirty days after the August 7, 2008 order of dismissal. Because his motion to reinstate was not verified, the notice of appeal was due 30 days after the dismissal order was signed. See Tex. R. Civ. P. 165a(3) (motion to reinstate shall be verified by the movant or his attorney); Tex. R. App. P. 26.1.

An unverified motion to reinstate does not extend the trial court's plenary power or the deadline for appealing the dismissal of the case. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (per curiam); Macarangal v. Andrews, 838 S.W.2d 632, 633 (Tex. App.-Dallas 1992, orig. proceeding); Sierra Club v. Tex. Comm'n on Envtl. Quality, 188 S.W.3d 220, 223 (Tex. App.-Austin 2005, no pet.).We conclude appellant's notice of appeal was untimely.

We therefore lack jurisdiction over this appeal. See Footnote 1 We dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 26.1.

LINDA THOMASCHIEF JUSTICE


Footnote 1 We note a prior appeal of this appellant was dismissed for lack of jurisdiction on the identical basis. See Amir-Sharif v. State Farm Mut. Ins. Co., No. 05-07-01254-CV, 2009 WL 104777, at *1 (Tex. App.-Dallas Jan. 16, 2009, no pet.).
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File Date[10/01/2009]

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