DeHart, Joey Dba American Enterprises and/or American Concrete v. West Texas Equipment, L. P.

• Court: Court of Appeals of Texas
• Decided: October 17, 2002
• Docket: 08-02-00097-CV
• Status: Published

Opinion

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOEY DEHART D/B/A AMERICAN ENTERPRISES AND/OR AMERICAN CONCRETE,                             Appellant, v. WEST TEXAS EQUIPMENT, L.P.,                             Appellee.

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No. 08-02-00097-CV Appeal from the County Court at Law No. Two of Midland County, Texas (TC# CC-10,937)

O P I N I O N

This appeal is before the Court on its own motion, for determination of whether it should be dismissed for want of prosecution.  Finding that no Appellant=s brief has been filed, we dismiss the appeal.

FACTS

This attempted restricted appeal is from a default judgment signed September 12, 2001. Appellant filed his notice of restricted appeal on March 13, 2002.  Appellant filed a motion for extension of time to file brief on June 6, 2002, and the Court granted an additional forty-five (45) days in which to file his brief.  Appellant=s brief was then due July 24, 2002, but no brief has been received in this Court, nor has a second motion for extension of time to file Appellant=s brief been received.  On August 2, 2002, pursuant to Tex. R. App. P. 42.3(b), this Court=s clerk sent the parties a notice of the Court=s intent to dismiss for want of prosecution if, within ten days of the notice, no party responded showing grounds to continue the appeal.  No response has been received as of this date.

Appellant=s Failure to File Brief

This court possesses the authority to dismiss an appeal for want of prosecution when Appellant has failed to file his brief in the time prescribed, and gives no reasonable explanation for such failure.  See Tex. R. App. P. 38.8; Celotex Corp. Inc. v. Gracy Meadow Owners Ass=n., Inc., 847 S.W.2d 384, 385 n.1 (Tex. App--Austin 1993, writ denied).  We have given notice of our intent to do so, requested a response if a reasonable basis for failure to file the brief or statement of facts exists, and have received none.  We see no purpose that would be served by declining to dismiss this appeal at this stage of the proceedings.  Pursuant to Tex. R. App. P. 38.8(a)(1) and 42.3(b), we dismiss the appeal for want of prosecution.

October 17, 2002

                                                                                                                                                RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)