Jerry Valdez v. Progressive County Mutual Insurance Company and Robert Stratton

• Court: Court of Appeals of Texas
• Decided: January 16, 2015
• Docket: 01-14-00546-CV
• Status: Published

Opinion

Opinion issued January 15, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00546-CV ——————————— JERRY VALDEZ, Appellant V. PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AND ROBERT STRATTON, Appellees

On Appeal from the 57th Judicial District Court Bexar County, Texas Trial Court Cause No. 2013-CI-14065

MEMORANDUM OPINION

Appellant, Jerry Valdez, timely appealed from the trial court’s March 11,

2014, order granting the appellees’ tradition and no-evidence motions for summary

judgment after his motion for new trial was denied. See TEX. R. APP. P. 26.1(a)(1).1 However, appellant has failed to timely file his amended appellate

brief after the clerk’s record was filed. See TEX. R. APP. P. 38.6(a).

After being ordered by this Court on October 9, 2014, to file an amended

appellate brief containing all necessary references to the clerk’s record, because

appellant had prematurely filed his brief before the clerk’s record was filed and his

brief lacked the required record references, appellant did not timely file an

amended brief or file an extension request. See TEX. R. APP. P. 38.1(d), (g), (i),

38.6(a), 42.3(c). After being notified by this Clerk of this Court on November 26,

2014, that this appeal was subject to dismissal for want of prosecution because

appellant had failed to timely file his amended brief, appellant did not timely

respond to the notice. See TEX. R. APP. P. 38.8(a)(1), 42.3(b), (c). Instead, the

appellees filed a motion to dismiss this appeal for want of prosecution and further

seek affirmance of the trial court’s order granting the appellees’ tradition and no-

evidence motions for summary judgment. Although the appellees’ motion lacks a

certificate of conference, the certificate of service states that it was served on

appellant’s counsel, this motion has been on file with the Court for more than 10

1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Fourth District of Texas to this Court pursuant to its docket equalization powers. See TEX. GOV’T CODE ANN. § 73.001 (West 2013) (“The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.”); Order Regarding Transfer of Cases From Courts of Appeals, Misc. Docket No. 14-9121, ¶ II (Tex. June 23, 2014).

2 days, and appellant has failed to respond to the motion. See TEX. R. APP. P.

10.1(a)(5), 10.3(a)(2).

Accordingly, we grant the motion to dismiss, in part, and dismiss the appeal

for want of prosecution for appellant’s failure to timely file an amended brief. See

TEX. R. APP. P. 38.8(a)(1), 42.3(b), (c). We dismiss any other pending motions as

moot.

PER CURIAM Panel consists of Justices Keyes, Higley, and Brown.