Larry Brooks v. Mass Marketing, Ltd., F/K/A Mass Marketing, Inc., D/B/A Super S. Foods

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-07-00658-CV

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Appellant, Mass Marketing, Ltd., d/b/a Super S. Foods// Cross-Appellant, Larry Brooks

v.

Appellee, Larry Brooks// Cross-Appellee, Mass Marketing, Ltd., d/b/a Super S. Foods

FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

NO. C2004-0497B, HONORABLE DIB WALDRIP, JUDGE PRESIDING

O R D E R

PER CURIAM

Appellant's (Mass Marketing, Ltd., d/b/a Super S. Foods ("Super S")) initial appellant's brief was due April 3, 2008. On April 22, 2008, appellant was notified about the late brief, given ten days to respond, and informed that a failure to respond would result in a dismissal for want of prosecution. See Tex. R. App. P.38.8(a)(1), 42.3(b). To date, we have received no response.

We cannot dismiss the entire cause because cross-appellant Larry Brooks is seeking to alter the judgment. ⁽¹⁾ Accordingly, we dismiss Super S as an appellant and any issues it may have brought as an appellant for want of prosecution. ⁽²⁾ Cause number 03-07-00658-CV will proceed with Larry Brooks as the sole appellant and Super S as the sole appellee, styled Larry Brooks v. Mass Marketing Ltd., d/b/a Super S. Foods. Brooks's appellant's brief is due thirty days from the date of this order; subsequent briefs are to follow the ordinary schedule as found in Texas Rule of Appellate Procedure 38.

It is ordered July 23, 2008.

Before Chief Justice Law, Justices Puryear and Pemberton

1. The trial court's original judgment awarded Brooks $75,000 and interest. After considering Super's motion for new trial, the court amended its judgment to subtract $50,000, the amount that had been awarded for lost past earnings from the original judgment in Brooks's favor.

2. The dismissal for want of prosecution will not be final until the rest of the cause is disposed of. Super S may file a motion to reinstate itself as an appellant under the timetables for motions for rehearing using the date of the order as the starting point for calculating the due date.