John Reed, Jr. v. Farmers Insurance Group

Opinion

ACCEPTED

03-14-00485-CV

5249043

THIRD COURT OF APPEALS

AUSTIN, TEXAS

5/12/2015 1:29:30 PM

JEFFREY D. KYLE

CLERK

03-14-00485-CV

IN THE THIRD COURT OF APPEALS FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS AUSTIN, TEXAS 5/12/2015 1:29:30 PM

JEFFREY D. KYLE

JOHN REED, JR., Clerk Appellant

v.

FARMERS INSURANCE GROUP,

Appellee

On Appeal from Cause No. 259,941-C In the 169th Judicial District Court of Bell County, Texas

APPELLEE FARMERS INSURANCE GROUP’S MOTION TO DISMISS APPEAL

UNDER TEXAS RULE OF APPELLATE PROCEDURE 42.3

Kevin G. Cain Levon G. Hovnatanian Christopher W. Martin State Bar No. 24012371 State Bar No. 10059825 State Bar No. 13057620 cain@mdjwlaw.com hovnatanian@mdjwlaw.com martin@mdjwlaw.com MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

808 Travis, 20th Floor Houston, Texas 77002

(713) 632-1700—Telephone (713) 222-0101—Facsimile

Michael Watson

State Bar No. 24008246 watson@mdjwlaw.com

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

16000 N. Dallas Parkway, Suite 800 Dallas, Texas 75248

(214) 420-5500—Telephone (214) 420-5501—Facsimile

TO THE HONORABLE COURT OF APPEALS:

Comes now the appellee, Farmers Insurance Group (“Farmers”), and files

this, its motion to dismiss appeal. Farmers respectfully shows the Court as

follows.

The Facts

On August 5, 2014, John Reed, Jr. filed a notice of appeal in this Court. On

October 27, the reporter’s record was filed. On October 29, the clerk’s record was

filed. That made the deadline for Reed to file his brief Monday, December 1,

2014. See TEX. R. APP. P. 38.6(a) (setting deadline for appellant’s brief in non-

accelerated appeal as 30 days from date complete record was filed); TEX. R. APP. P.

4.1(a) (method of computing time).

Now, over five months later, Reed still has not filed a brief. The Court

granted him extensions of time on November 19, January 20, February 9, and

March 13. After four extensions, Reed still has not filed a brief.

On April 29, Reed filed yet another motion for extension of time. In the

motion, he candidly stated that “Appellant has previously filed three or four

extensions.” The motion does not explain his failure to file a brief.

On April 29, the Court’s Clerk wrote Reed a letter which stated in relevant

part:

Appellant’s brief was due in this Court on April 27, 2015 and is overdue. See Tex. R. App. P. 38.6(a). If appellant fails to file a brief,

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the Court may dismiss the appeal for want of prosecution unless appellant reasonably explains the failure and appellee is not significantly injured by that failure. If this Court does not receive a satisfactory response to this notice on or before Monday, May 11, 2015, the Court may dismiss the appeal for want of prosecution. . . .

(Emphasis in original.) Reed has not filed a response.

The Court Should Dismiss The Appeal.

Based on the above facts, the Court should dismiss Reed’s appeal on either

of two grounds.

A. In Violation of the Clerk’s Notice, Reed has Failed to Explain his Failure to File a Brief.

Under Texas Rule of Appellate Procedure 42.3(c), this Court may, on any

party’s motion, dismiss an appeal or affirm the judgment if the appellant “has

failed to comply with a requirement of these rules, a court order, or a notice from

the clerk requiring a response or other action within a specified time.” Reed has

failed to comply with the notice from this Court’s Clerk requiring that he provide a

response by May 11, 2015 that reasonably explains his failure to file a brief. The

Court should therefore dismiss Reed’s appeal. See Eich v. Glenn, 2010 WL

4629645, at *1 (Tex. App.—Austin 2010, no pet.) (dismissing appeal after warning

appellant that appeal could be dismissed if he failed to reasonably explain failure to

file brief and appellant did not file response); Resendez v. Alvarado, 2003 WL

1091033, at *1 (Tex. App.—Corpus Christi 2003, no pet.) (dismissing appeal after

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considering “appellant’s failure to file a proper appellate brief, this Court’s notice,

and appellant’s failure to respond”).

B. Reed has not Prosecuted his Appeal.

Under Texas Rule of Appellate Procedure 42.3(b), this Court may, on any

party’s motion, dismiss an appeal or affirm the judgment if the appellant has failed

to prosecute his appeal. That is the case here. Despite four extensions, Reed still

has not filed a brief—and his original deadline was over five months ago.

With his unprosecuted appeal, Reed is causing Farmers to needlessly incur

still more attorneys’ fees and to waste even more time. See Ball v. City of

Chicago, 2 F.3d 752, 759 (7th Cir. 1993). This Court should dismiss Reed’s

appeal for want of prosecution. See Frisbie v. State, 1999 WL 46698, at *1 (Tex.

App.—Austin 1999, no pet.) (not designated for publication) (dismissing appeal

for want of prosecution where “appellant has not submitted a brief”); Lettieri v.

Lettieri, 1997 WL 499697, at *1 (Tex. App.—Dallas 1997, no pet.) (not designated

for publication) (dismissing appeal for want of prosecution where appellant failed

to file brief within time allowed).

Conclusion and Prayer For Relief

Farmers respectfully asks the Court to dismiss the appeal.

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Respectfully submitted,

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

By: /s/ Levon G. Hovnatanian Levon G. Hovnatanian State Bar No. 10059825 hovnatanian@mdjwlaw.com Kevin G. Cain State Bar No. 24012371 cain@mdjwlaw.com Christopher W. Martin State Bar No. 13057620 martin@mdjwlaw.com 808 Travis, 20th Floor Houston, Texas 77002 (713) 632-1700 – Telephone (713) 222-0101 – Facsimile

MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.

By: /s/ Michael Watson Michael Watson State Bar No. 24008246 watson@mdjwlaw.com 16000 N. Dallas Parkway, Suite 800 Dallas, TX 75248 (214) 420-5500 – Telephone (214) 420-5501 – Facsimile

ATTORNEYS FOR APPELLEE FARMERS INSURANCE GROUP

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CERTIFICATE OF CONFERENCE

This is to certify that I conferred with appellant Mr. John Reed, Jr. on May 12, 2015, regarding whether he opposes this motion, and he advised that he opposes it.

/s/ Levon G. Hovnatanian Levon G. Hovnatanian

CERTIFICATE OF COMPLIANCE

This is to certify that this computer-generated motion to dismiss appeal contains 684 words.

/s/ Levon G. Hovnatanian Levon G. Hovnatanian Dated: May 12, 2015

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing motion to dismiss appeal has been forwarded by the method(s) indicated below to the following persons on this 12th day of May, 2015.

Mr. John Reed, Jr., pro se 715 S. 32nd Street Temple, Texas 76501

(Appellant)

(via CM-RRR 7014 1200 0000 7830 1280)

/s/ Levon G. Hovnatanian Levon G. Hovnatanian