Joe L. Phillips and the Limestone County Nineteenth of June Organization v. William "Pete" Kirven, Sharon Kirven, Dorothy Touchstone,Billy Touchstone, Jacqueline Gee, Winford Gee, and Madeline Gamble in the Right of the Limestone County Nineteenth of June Organization

• Court: Court of Appeals of Texas
• Decided: April 19, 2017
• Docket: 10-17-00013-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00013-CV

JOE L. PHILLIPS AND THE LIMESTONE COUNTY NINETEENTH OF JUNE ORGANIZATION, Appellants v.

WILLIAM "PETE" KIRVEN, SHARON KIRVEN, DOROTHY TOUCHSTONE,BILLY TOUCHSTONE, JACQUELINE GEE, WINFORD GEE, AND MADELINE GAMBLE IN THE RIGHT OF THE LIMESTONE COUNTY NINETEENTH OF JUNE ORGANIZATION, Appellees

From the 77th District Court Limestone County, Texas Trial Court No. 30,727-A

MEMORANDUM OPINION

Appellants, Joe L. Phillips and The Limestone County Nineteenth of June

Organization, appeal from an adverse judgment signed by the trial court on October 17,

2016. According to the docketing statement, appellants filed a motion for new trial on

November 16, 2016. See TEX. R. CIV. P. 329b(a) (providing that a motion for new trial must be filed within thirty days after the judgment or other order complained of is signed).

Thereafter, on January 17, 2017, appellants filed their notice of appeal in this matter. See

TEX. R. APP. P. 26.1(a) (stating that a notice of appeal must be filed within ninety days

after the judgment is signed if any party timely files, among other things, a motion for

new trial). And pursuant to Texas Rule of Appellate Procedure 35.1(a), the Clerk’s Record

was due on February 14, 2017. See id. at R. 35.1(a) (stating that the appellate record must

be filed within 120 days after the judgment is signed, if Rule 26.1(a) applies).

On February 17, 2017, the Limestone County District Clerk notified the parties and

this Court that “the Clerk’s Record in the above referenced cause has been prepared.

However, the record has not been filed with your court, as payment for the record has

not been received.” Thereafter, on February 21, 2017, the Clerk of this Court notified

appellants that the Clerk’s Record has not been filed in this Court because appellant “has

failed to pay or make arrangements to pay the clerk’s fee for preparation of the record.”

The Clerk further noted that appellant must pay or make arrangements to pay the clerk’s

fees within twenty-one days of February 21, 2017, or else “this appeal may be dismissed

for want of prosecution.” Appellants have not responded to our February 21, 2017 letter.

Texas Rule of Appellate Procedure 37.3(b) provides that if an appellant fails to pay

or make arrangements to pay the clerk’s fee for preparation of the record, the Court may

“dismiss the appeal for want of prosecution unless the appellant was entitled to proceed

without payment of costs. The court must give the appellant a reasonable opportunity

Phillips, et al. v. Kirven, et al. Page 2 to cure before dismissal.” TEX. R. APP. P. 37.3(b). To date, the record does not reflect that

appellants have paid or made arrangements to pay for the Clerk’s Record or that

appellants are entitled to proceed without payment of costs. Therefore, pursuant to Rule

37.3(b), we hereby dismiss this appeal for want of prosecution. See id.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed April 19, 2017 [CV06]

Phillips, et al. v. Kirven, et al. Page 3