Howard Kim v. Brad Scarborough and Scarborough Properties, LLC

• Court: Court of Appeals of Texas
• Decided: July 15, 2004
• Docket: 14-04-00262-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed July 15, 2004

Dismissed and Memorandum Opinion filed July 15, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00262-CV

HOWARD KIM, Appellant

V.

BRAD SCARBOROUGH and SCARBOROUGH PROPERTIES, LLC, Appellees

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 806,339

M E M O R A N D U M  O P I N I O N

This is an appeal from a judgment signed January 20, 2004.  Appellant=s brief was due April 22, 2004.  No brief or motion for extension of time was filed.  On May 13, 2004, the Court issued an order stating:

Unless appellant submits his brief, and a motion reasonably explaining why the brief was late, to the Clerk of this Court on or before June 11, 2004, the Court will dismiss the appeal for want of prosecution.  See Tex. R. App. P. 42.3(b). 

On June 9, 2004, both Howard Kim and his wife, Okjin Kim, filed separate motions for extension of time to file a brief in this appeal.  Upon review of the motions and the record, it appears that this Court may not have jurisdiction over this appeal.  Suit was filed by Ok Jin Kim d/b/a Elite Auto Sales, and the judgment of the court below recites: APlaintiff Ok Jin Kim shall take nothing from Defendants Scarborough Properties and Brad R. Scarborough and all relief requested in Plaintiff Ok Jin Kim=s petition is DENIED.@  Howard Kim was not a party to the suit.  The only notice of appeal in the record is filed by Howard Kim as appellant.  Moreover, although the notice of appeal states it is filed by Howard Kim, it is signed by Okjin Kim, pro se.  The record does not indicate that Okjin Kim is an attorney.  Accordingly, she may not sign a notice of appeal on behalf of Howard Kim.  The record also reveals numerous other litigation between these parties; therefore, the incorrect notice of appeal could easily cause confusion as to which case is being appealed. 

The notice of appeal is defective.  See Tex. R. App. P. 25.1(d)(3),(5).  When an appellant files an instrument that is a bona fide attempt to invoke appellate court jurisdiction, a court of appeals should allow an opportunity to amend a defective instrument before dismissal.  City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex.1992) (per curiam); Grand Prairie I.S.D. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (per curiam).  Therefore, on June 17, 2004, this Court issued an order stating:

This appeal will be dismissed for want of jurisdiction unless the jurisdictional defect is corrected by an amended notice of appeal filed with the clerk of this court on or before June 30, 2004.  See Tex. R. App. P. 25.1(f). 

Howard Kim submitted a letter acknowledging the error and requesting that we delete his name as appellant and substitute his wife=s name.  Okjin Kim did not file an amended notice of appeal or otherwise respond to the Court=s June 17, 2004 order.  Accordingly, the only notice of appeal before the Court names an individual who is not a party to the suit.

We, therefore, dismiss the appeal.  See Tex. R. App. P. 42.3.

PER CURIAM

Memorandum Opinion filed July 15, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.