David Bryan Ballard v. David S. Wishnew, M.D.

Opinion

Ballard v. Wishnew

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00163-CV

David Bryan Ballard, Appellant

v.

David S. Wishnew, M.D., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 95-14696, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

PER CURIAM

Appellee David S. Wishnew, M.D., moves this Court to dismiss appellant David Bryan Ballard's appeal. Ballard sued Wishnew for medical malpractice related to reconstructive surgery. Following the trial court's summary judgment for Wishnew, Ballard timely filed an affidavit of inability to pay the costs of appeal. He did not, however, notify Wishnew that he filed the affidavit, as required by Rule of Appellate Procedure 40(a)(3)(B). See Tex. R. App. P. 40(a)(3)(B).

Ballard cannot proceed on appeal by affidavit of inability to pay without having given the required notice. Id.; In re V.G., 746 S.W.2d 500, 502 (Tex. App.--Houston [1st Dist.] 1988, no writ); Bantuelle v. Renfroe, 620 S.W.2d 635, 640 (Tex. Civ. App.--Dallas 1981, no writ). The Clerk of this Court invited Ballard either to amend his affidavit by filing a bond or depositing cash or to show grounds for continuing the appeal. See Aguirre v. Texas Dep't of Protective & Regulatory Servs., 917 S.W.2d 462, 464 (Tex. App.--Austin 1996, no writ). To this date, Ballard has done neither.

We therefore grant Wishnew's motion and dismiss the appeal for failure to comply with the requirements of the Texas Rules of Appellate Procedure. Tex. R. App. P. 60(a)(1).

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Dismissed on Appellee's Motion

Filed: October 9, 1996

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