Buddy Kindle v. Duane Toone and Karen Toone

• Court: Court of Appeals of Texas
• Decided: September 2, 2020
• Docket: 12-19-00396-CV
• Status: Published

Opinion

NO. 12-19-00396-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BUDDY KINDLE, § APPEAL FROM THE 402ND APPELLANT

V. § JUDICIAL DISTRICT COURT

DUANE TOONE AND KAREN TOONE, § WOOD COUNTY, TEXAS APPELLEES

MEMORANDUM OPINION PER CURIAM This appeal is being dismissed for want of prosecution. See TEX. R. APP. P. 42.3(b). Buddy Kindle, acting pro se, filed a notice of appeal to challenge a judgment from October 30, 2019. The clerk’s record was filed on December 17, 2019, and the reporter’s record was filed on January 23, 2020. Kindle’s brief was due on or before February 24. On February 26, this Court granted Kindle’s motion for extension of time to March 25. On March 20, Kindle filed a motion for extension of time because the law library closed due to COVID-19, he is elderly and suffers from health conditions that render him at risk should he contract COVID-19, it is not healthy or practical for him to travel to another law library, he does not have access to a computer and internet at his home, and he cannot afford an attorney. This Court granted the request to April 24. Kindle filed yet another motion for extension on April 24, which this Court granted to May 26. The notice warned that no further extensions would be entertained and failure to file a brief by the extended deadline may result in the case being referred to the court for dismissal. On May 28, Duane and Karen Toone filed a motion to dismiss for want of prosecution. On June 1, Kindle filed another motion for extension, again citing the COVID-19 concerns identified in his previous motion. As of the date of this opinion, Kindle has not filed a brief. When an appellant fails to timely file a brief, the appellate court may dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant’s failure to timely file a brief. TEX. R. APP. P. 38.8(a)(1). A pro se litigant, such as Kindle, is held to the same standards as licensed attorneys and must comply with all applicable rules of procedure. Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.—Tyler June 21, 2017, no pet.) (mem. op.). But for this rule, pro se litigants would benefit from an unfair advantage over those parties who are represented by counsel. Id. Because Kindle failed to file a timely brief or file a late brief accompanied by a motion for leave to file late brief, we grant the Toones’ motion to dismiss and we dismiss the appeal for want of prosecution. See TEX. R. APP. P. 38.8(a)(1), 42.3(b). All pending motions are overruled as moot. Opinion delivered September 2, 2020. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 2, 2020

BUDDY KINDLE, Appellant V. DUANE TOONE AND KAREN TOONE, Appellees

Appeal from the 402nd District Court of Wood County, Texas (Tr.Ct.No. 2019-367)

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this Court that this appeal should be dismissed for want of prosecution. It is therefore ORDERED, ADJUDGED and DECREED by this Court that the appeal be, and the same is, hereby dismissed for want of prosecution; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.