Cergon, Inc. D/B/A Primo's Bar & Grill and Edward Cervantes v. Cheung-Loon, LLC

• Court: Court of Appeals of Texas
• Decided: January 27, 2015
• Docket: 05-13-01467-CV
• Status: Published

Opinion

ACCEPTED 05-13-01467-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 1/27/2015 9:44:59 AM LISA MATZ CLERK

No. 05-13-01467-CV

IN THE COURT OF APPEALS FILED IN FOR THE FIFTH DISTRICT OF TEXAS 5th COURT OF APPEALS DALLAS, TEXAS AT DALLAS 1/27/2015 9:44:59 AM LISA MATZ Clerk CERGON, INC. d/b/a APPELLANTS PRIMO’S BAR AND GRILL and EDWARD CERVANTES

v.

CHEUNG-LOON, LLC APPELLEE

MOTION TO DISMISS FOR WANT OF PROSECUTION [filed by Appellee]

Appellee Cheung-Loon, LLC, respectfully moves this honorable

Court to dismiss this appeal for want of prosecution pursuant to Tex. R.

App. P. 38.8(a)(1) and 42.3(b) and (c), stating as follows:

1. Appellants filed their notice of appeal in the trial court on

October 22, 2013.

2. On May 21, 2014, the Court ordered Appellants to file their

briefs on or before June 23, 2014. Appellants sought and were granted

an extension of that deadline to July 23, 2014.

-1- SP-#6499157-v1-Cheung-Loon__Motion_to_Dismiss_Appeal.doc 6145684.1/SP/25646/0116/081114 3. Counsel for Appellants then moved to withdraw, which mo-

tion was granted on July 17, 2014. The Court extended the Appellants’

briefing deadline to September 19, 2014.

4. The Court dismissed the appeal of Appellant Cergon, Inc., on

September 9, 2014, leaving Edward Cervantes as the sole Appellant.

5. The September 19, 2014, briefing deadline passed without

any brief being filed.

6. On September 30, 2014, the Court again extended Appellant

Cervantes’s briefing deadline, requiring his brief be filed on or before

October 13, 2014. The Court warned that this appeal would be dis-

missed without further notice if Cervantes failed to file his brief and a

motion to extend time by that deadline.

7. As of the date of this motion, Appellant Cervantes has filed

neither a brief nor a motion to extend his briefing deadline.

8. This Court may dismiss this appeal for want of prosecution

due to Appellant’s failure to timely file his brief. Tex. R. App. P.

38.8(a)(1). The Court may also dismiss due to Appellant’s failure to

comply with the Court’s previous orders. Tex. R. App. P. 42.3(c).

9. Because this Court provided notice to Appellant on Septem-

-2- SP-#6499157-v1-Cheung-Loon__Motion_to_Dismiss_Appeal.doc 6145684.1/SP/25646/0116/081114 ber 30, 2014, of its intent to dismiss this appeal if his brief was not filed

on October 13, 2014, the Court need not further delay the dismissal of

this appeal.

10. Appellant Cervantes’s failure to file a brief demonstrates

that he does not intend to pursue this appeal. Accordingly, this appeal

should be dismissed for want of prosecution.

For the reasons set forth above, Appellee respectfully prays that

this appeal be dismissed for want of prosecution.

Respectfully submitted,

/s/ Jadd F. Masso JADD F. MASSO State Bar No. 24041411 jadd.masso@strasburger.com

STRASBURGER & PRICE, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202 (214) 651-4300 (214) 651-4330 (facsimile)

ATTORNEY FOR APPELLEE

-3- SP-#6499157-v1-Cheung-Loon__Motion_to_Dismiss_Appeal.doc 6145684.1/SP/25646/0116/081114 CERTIFICATE OF SERVICE

I hereby certify that this document has been served on the Appel- lant by certified mail, return receipt requested, at the following address of record:

Mr. Edward Cervantes 1901 N. Haskell Ave. #120 Dallas, Texas 75226

on January 27, 2015.

/s/ Jadd F. Masso JADD F. MASSO

-4- SP-#6499157-v1-Cheung-Loon__Motion_to_Dismiss_Appeal.doc 6145684.1/SP/25646/0116/081114