Richard Kirby v. Benny Fletcher

• Court: Court of Appeals of Texas
• Decided: December 14, 2023
• Docket: 12-23-00279-CV
• Status: Published

Opinion

NO. 12-23-00279-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD KIRBY, § APPEAL FROM THE 241ST APPELLANT

V. § JUDICIAL DISTRICT COURT

BENNY FLETCHER, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM

This appeal is being dismissed for failure to comply with the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 42.3(c). Richard Kirby filed a pro se notice of appeal on October 27, 2023. On November 1, the Clerk of this Court notified Appellant that the notice of appeal failed to contain the information specifically required by Section 51.017(a) of the Texas Civil Practice and Remedies Code. 1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.017(a) (West Supp. 2019) (notice of appeal must be served on each court reporter responsible for preparing reporter’s record). The notice warned that, unless Appellant filed a proper notice of appeal on or before December 1, the appeal would be referred to the Court for dismissal. This deadline passed and Appellant has not filed a compliant notice of appeal or other response to this Court’s notice. Because Appellant failed, after notice, to comply with Section 51.017(a), the appeal is dismissed. See TEX. R. APP. P. 42.3(c) (on its own initiative after giving ten days’ notice to all parties, appellate court may dismiss appeal if appeal is subject to dismissal because appellant

1 Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable

rules of procedure; otherwise, pro se litigants would benefit from an unfair advantage over parties represented by counsel. Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.— Tyler June 21, 2017, no pet.) (mem. op.).

1 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).

Opinion delivered December 14, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 14, 2023

RICHARD KIRBY, Appellant V. BENNY FLETCHER, Appellee

Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 21-1098-C)

THIS CAUSE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that the appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed; and that this decision be certified to the court below for observance.

By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.