Platinum Power Moves, Inc. v. Wilbart McCoy III

• Court: Court of Appeals of Texas
• Decided: May 23, 2024
• Docket: 01-22-00551-CV
• Status: Published

Opinion

Opinion issued May 23, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00551-CV ——————————— PLATINUM POWER MOVES, INC., Appellant V. WILBART MCCOY III, Appellee

On Appeal from the 334th District Court Harris County, Texas Trial Court Case No. 2016-45530

MEMORANDUM OPINION

Appellant, Platinum Power Moves, Inc., filed a notice of appeal from the trial

court’s June 10, 2022 final judgment in favor of appellee, Wilbart McCoy III.

Appellant has failed to timely file a brief. See TEX. R. APP. P. 38.6(a) (governing

time to file brief). The record in this appeal was originally due on or before October 10, 2022.

The clerk’s record was filed on November 29, 2022. However, no reporter’s record

was filed because appellant failed to request the preparation of the reporter’s record

and failed to make arrangements for payment for the preparations of the reporter’s

record. Accordingly, on April 25, 2023, the Court notified appellant that it would

consider and decide those issues or points that did not require a reporter’s record and

set appellant’s brief deadline as May 25, 2023. See TEX. R. APP. P. 38.6(a).

Appellant did not file an appellant’s brief by that deadline. On May 31, 2023,

appellant filed a motion to extend the deadline for filings its brief. The Court granted

appellant’s motion and extended the deadline to June 30, 2023. Appellant failed to

file a brief by the extended deadline.

On July 5, 2023, the Clerk of this Court notified appellant that this appeal was

subject to dismissal unless a brief, or a motion to extend time to file a brief, was filed

within ten days of the notice. See TEX. R. APP. P. 38.8(a) (governing failure of

appellant to file brief), 42.3(b) (allowing involuntary dismissal of appeal for want of

prosecution), 42.3(c) (allowing involuntary dismissal of case for failure to comply

with notice from Clerk of Court). In response to the Court’s notice, on August 1,

2023, appellant filed a motion for extension of time to file its brief. Appellant

requested that the deadline be extended to September 18, 2023 “[t]o give [a]ppellant

sufficient time to negotiate” with appellee.

2 On August 1, 2023, appellee filed a response to appellant’s motion for

extension of time to file its brief. Appellee asserted that, despite appellant’s

contention that it has “decided to work to settle” the appeal, appellant “has never

contacted [a]ppellee’s counsel” regarding any settlement discussions. However,

counsel for appellee learned that “one of [a]ppellant’s agents reached out directly to

[a]ppellee’s agent on July 28, 2023,” regarding potential settlement, “but was

promptly informed that [a]ppellee is not interested in settlement.”

On August 8, 2023, appellant’s motion for extension of time to file its brief

was denied, and appellant was ordered by the Court to file a brief within ten days of

the date of the order. Appellant was further notified that failure to file a brief could

result in dismissal for want of prosecution. See TEX. R. APP. P. 42.3(b), (c). Despite

the notice that this appeal was subject to dismissal, appellant did not adequately

respond.

Accordingly, we dismiss this appeal for want of prosecution. See TEX. R. APP.

P. 42.3(b), (c); 43.2(f). All pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.