American Transit Corporation v. Kimberlie Harris

• Court: Court of Appeals of Texas
• Decided: February 12, 1992
• Docket: 03-92-00009-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-92-009-CV

AMERICAN TRANSIT CORPORATION,

APPELLANT

vs.

KIMBERLIE HARRIS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 482,339-A, HONORABLE F. SCOTT MCCOWN, JUDGE

PER CURIAM

Appellant American Transit Corporation seeks review by petition for writ of error from a judgment of the district court of Travis County in favor of appellee Kimberlie Harris. Harris has filed a motion to affirm district court judgment and for judgment on cost and supersedeas bond. We will overrule the motion and dismiss the appeal for want of prosecution.

Harris filed suit against American Transit and Capital Metropolitan Transit Authority ("Capital Metro"). On June 7, 1990, the district court rendered a default judgment against both defendants and in favor of Harris. Capital Metro filed a motion for new trial, which the trial court granted in July 1990. On December 11, 1990, the trial court issued its order severing Harris's claim against American Transit from that against Capital Metro. On June 26, 1991, the trial court issued a final judgment against American Transit in the severed cause. ⁽¹⁾

American Transit timely filed its petition for writ of error and supersedeas and cost bond with the district clerk of Travis County on October 4, 1991. See Tex. R. App. P. Ann. 45 (Pamph. 1991). In response to Harris's motion to affirm the judgment, American Transit contends that the record shows "fundamental error." See generally DSC Finance Corp. v. Moffitt, 815 S.W.2d 551 (Tex. 1991). Because we do not address any question of error, we decline to affirm the judgment of the trial court and overrule Harris's motion.

This Court may, however, dismiss an appeal for failure to file the record within the designated time. Tex. R. App. P. Ann. 54(a) (Pamph. 1991). The record was due to be filed in this cause on December 3, 1991. Rule 54(a). A motion for extension of time was due fifteen days later, that is, on or before December 18, 1991. Tex. R. App. P. Ann. 54(c) (Pamph. 1991); see Chojnacki v. Court of Appeals, 699 S.W.2d 193 (Tex. 1985); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860 (Tex. 1982). In its response, American Transit states that, at the time it filed its petition for writ of error, it requested "a transcript of the proceedings." See generally Tex. R. App. P. Ann. 51(b), 53(a) (Pamph. 1991).

American Transit, however, has filed neither a transcript or statement of facts nor a motion requesting an extension of time within which to file the record. Because the time within which to file a motion for extension of time has passed, we dismiss the appeal for want of prosecution.

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Dismissed for Want of Prosecution

Filed: February 12, 1992

[Do Not Publish]

1.

¹ There was a question whether the default judgment rendered June 7, 1990, was final as to American Transit because only Capital Metro filed a motion for new trial. The trial court severed the claims after the court granted the motion for new trial. See Amcole Energy Corp. v. Chapman, Inc., 666 S.W.2d 540 (Tex. App. 1984, no writ).