Beverly Scott, Gwendolyn Carpenter, Derrick Scott and Sammie Scott v. Dr. Robin Lynn Armstrong, Curtis J. Bickers and Vujasinovic & Beckcom PLLC

• Court: Court of Appeals of Texas
• Decided: January 2, 2015
• Docket: 01-14-00319-CV
• Status: Published

Opinion

ACCEPTED 01-14-00319-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/2/2015 8:57:33 AM CHRISTOPHER PRINE CLERK

NO. 01-14-00319-CV ____________________ FILED IN 1st COURT OF APPEALS IN THE HOUSTON, TEXAS COURT OF APPEALS 1/2/2015 8:57:33 AM FOR THE CHRISTOPHER A. PRINE FIRST JUDICIAL DISTRICT Clerk OF TEXAS AT HOUSTON _____________________

BEVERLY SCOTT, MICHAEL SCOTT, JAMES SCOTT, EMMA BELL, CLARA SCOTT, SAMMIE SCOTT, ALFRED SCOTT, SHARON SCOTT, DORIS SCOTT, GWENDOLYN CARPENTER, CAROLYN SCOTT, DERRICK SCOTT, SANDRA SCOTT, INDIVIDUALLY AND AS NEXT FRIEND OF EULA MAE SCOTT, DECEASED Appellants vs. ROBIN LYNN ARMSTRONG, M.D. Appellee _____________________

Appealed from the District Court of Harris County, Texas 234th Judicial District Honorable Wesley Ward, Judge Presiding _____________________

APPELLEE’S MOTION TO DISMISS FOR FAILURE TO PROSECUTE ______________________

RICHARD M. LAW State Bar No. 12004500 SMITH ADAMS LAW FEEHAN LLP 1415 Louisiana, Suite 3800 Houston, Texas 77002 (713) 652-3200 (713) 652-6000 (Facsimile)

ATTORNEY FOR APPELLEE IDENTITY OF PARTIES AND COUNSEL

In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a complete list of all parties to the trial court’s interlocutory order and their counsel with regard to this order:

APPELLANTS: BEVERLY SCOTT, MICHAEL SCOTT, JAMES SCOTT, EMMA BELL, CLARA SCOTT, SAMMIE SCOTT, ALFRED SCOTT, SHARON SCOTT, DORIS SCOTT, GWENDOLYN CARPENTER, CAROLYN SCOTT, DERRICK SCOTT, SANDRA SCOTT, INDIVIDUALLY AND AS NEXT FRIEND OF EULA MAE SCOTT, DECEASED

COUNSEL FOR APPELLANTS: Pro Se 406 Deats Road #86 Dickinson, Texas 77539 Telephone: (832) 785-0282

APPELLEE: ROBIN LYNN ARMSTRONG, M.D.

COUNSEL FOR APPELLEE: Richard M. Law Texas Bar No. 12004500 SMITH ADAMS LAW FEEHAN LLP 1415 Louisiana, Suite 3800 Houston, Texas 77002 Telephone: (713) 520-3200 Fax: (713) 520-6000

OTHER PARTIES TO APPEAL: CURTIS J. BICKERS AND VUJASINOVIC & BECKCOM PLLC.

-2- COUNSEL FOR OTHER PARTIES: Brian Beckom Texas Bar No. 24012268 Curtis J. Bickers Texas Bar No. 24048352 VUJASINOVIC & BECKCOM, PLLC. 1001 Texas Avenue, Suite 1020 Houston, Texas 77002 Telephone: (713) 224-7800 Fax: (713) 224-7801

TRIAL JUDGE: Honorable Judge Wesley Ward 234th Judicial District Court 201 Caroline Houston, Texas 77002

-3- NO. 01-14-00319-CV

____________________

IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON _____________________

BEVERLY SCOTT, MICHAEL SCOTT, JAMES SCOTT, EMMA BELL, CLARA SCOTT, SAMMIE SCOTT, ALFRED SCOTT, SHARON SCOTT, DORIS SCOTT, GWENDOLYN CARPENTER, CAROLYN SCOTT, DERRICK SCOTT, SANDRA SCOTT, INDIVIDUALLY AND AS NEXT FRIEND OF EULA MAE SCOTT, DECEASED Appellants vs. ROBIN LYNN ARMSTRONG, M.D. Appellee _____________________

Appealed from the District Court of Harris County, Texas 234th Judicial District Honorable Wesley Ward, Judge Presiding

__________________________________________

TO THE HONORABLE COURT OF APPEALS:

Appellee asks the Court to either dismiss this appeal or affirm the trial

court’s judgment and grant appellee judgment for costs.

-4- A. INTRODUCTION

Appellants are Beverly Scott, Michael Scott, James Scott, Emma Bell, Clara

Scott, Sammie Scott, Alfred Scott, Sharon Scott, Doris Scott, Gwendolyn Carpenter,

Carolyn Scott, Derrick Scott, Sandra Scott, Individually and as Next Friend of Eula

Mae Scott, Deceased. Appelle is Robin Lynn Armstrong, M.D.

The 234th Court of Harris County, Texas, signed the Motion of Dismissal with

prejudice as to Appelle, Robin Lynn Armstrong, M.D., in Scott vs. Sozos, M.D.,

et.al., cause number 2012-33615 on April 8, 2014, in favor or appellee and against

appellants.

Appellants perfected their appeal on April 22, 2014.

The trial clerk’s record was due on or before June 9, 2014. On June 16, 2014,

this Court issued notice that the clerk’s record in this appeal had not been timely filed

with the court, and extended the deadline to July 16, 2014. The clerk’s record was

filed on November 10, 2014, after the deadline imposed by the Court.

B. ARGUMENT AND AUTHORITIES

The Court has the authority to dismiss this appeal for want of prosecution or,

in the alternative, to affirm the trial court’s judgment. Tex. R. App. P. 42.3(b).

Appellant’s brief was due on December 10, 2014. More than 20 days have

expired since Appellants’ brief was originally due, and Appellants have not filed a

brief and have not asked for an extension of time to file their brief. Under Texas Rule

-5- of Appellate Procedure 42.3(b), the Court may dismiss this appeal for want of

prosecution.

Appellee is entitled to damages for frivolous appeal under Texas Rule of

Appellate Procedure 45. This Court may assume appellants brought this appeal solely

for delay if it finds appellants prosecuted the appeal without observing the minimal

procedural requirements for an appeal. See Hennigan v. Hennigan, 677 S.W. 2d 495,

496 (Tex. 1984); Compass Expl., Inc. v. B-E Drilling Co., 60 S.W. 3d 273, 279-80

(Tex. App.−Waco 2001, no pet.).

C. CONCLUSION & PRAYER

Appellants have repeatedly missed deadlines and failed to file responses to the

Court’s requests, showing very little effort in the prosecution of this appeal. Most

glaring, Appellants missed the deadline to file their brief and have not asked for an

extension of time to file their brief. For these reasons, Appellee asks the Court to

grant this motion and dismiss this appeal or, in the alternative, affirm the trial court’s

judgment, grant appellee damages for frivolous appeal and grant appellee judgment

for costs.

-6- Respectfully submitted,

SMITH ADAMS LAW FEEHAN LLP

BY:_____ /s/Richard M. Law __________ Richard M. Law Texas Bar No. 12004500 1415 Louisiana, Suite 3800 Houston, Texas 77002 (713) 652-3200 (Telephone) (713) 652-6000 (Facsimile)

ATTORNEY FOR APPELLEE, ROBIN LYNN ARMSTRONG, M.D.

-7- CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record herein by hand delivery, facsimile transmission, or by placing same in the United States mail, regular or certified/return receipt requested, on this the 2nd day of January, 2015.

Beverly Scott, et al. 406 Deats Road #86 Dickinson, Texas 77539 VIA CMRRR

Brian Beckom Curtis J. Bickers VUJASINOVIC & BECKCOM, PLLC. 1001 Texas Avenue, Suite 1020 Houston, Texas 77002 VIA CMRRR

_________/s/ Richard M. Law ___________ RICHARD M. LAW

-8-