Sean Whitehead and POC Marina, LLC A/K/A Marina Del Mar, LLC v. Michael Weynand, Travis Materials Land Company, Ltd., and Travis Materials Land Port O'Connor, LP

• Court: Court of Appeals of Texas
• Decided: May 1, 2025
• Docket: 13-24-00452-CV
• Status: Published

Opinion

NUMBER 13-24-00452-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SEAN WHITEHEAD AND POC MARINA, LLC A/K/A MARINA DEL MAR, LLC Appellants,

v.

MICHAEL WEYNAND, TRAVIS MATERIALS LAND COMPANY, LTD., AND TRAVIS MATERIALS LAND PORT O'CONNOR, LP, Appellees.

ON APPEAL FROM THE 135TH DISTRICT COURT OF CALHOUN COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Cron Memorandum Opinion by Justice Cron

This cause is before the Court on appellants’ second amended motion to abate the

appeal and on appellees’ motion to dismiss. On September 13, 2024, appellants filed a pro se notice of appeal attempting to appeal a final judgment in trial court cause number

2020-CV-3991-DC. 1 We are of the opinion that the case should now be dismissed, as

appellants have failed to adequately prosecute the appeal and have otherwise failed to

comply with a notice from the Clerk of the Court requiring a response or other action within

a specified period of time.

On September 16, 2024, the Clerk of the Court requested appellants pay the

$205.00 filing fee for the notice of appeal within ten days. See TEX. R. APP. P. 5 (“A party

who is not excused by statute or these rules from paying costs must pay—at the time an

item is presented for filing—whatever fees are required by statute or Supreme Court

order. The appellate court may enforce this rule by any order that is just.”); TEX. GOV’T

CODE ANN. § 51.207 (delineating the required fees and costs in an appellate court).

On November 4, 2024, the Clerk of the Court notified appellants that they were

delinquent in submitting the filing fee for the appeal and informed them that the appeal

would be dismissed if the filing fee was not paid within 10 days from the date of the notice.

See id. R. 42.3(c). On March 3, 2025, appellants filed a statement of inability to afford

payment of court costs or an appeal bond. Accordingly, we abated the matter in order for

the trial court to make an indigency determination. Upon review of the record before us,

the trial court has determined that appellants were provided adequate notice and failed

to appear before the trial court at a hearing to address and determine his indigency.

To date, appellants have failed to pay to the appellate filing fee. This Court has the

1 Appellants’ original notice of appeal indicated POC Marina, LLC was an appellant; however, this

party never made a legal appearance before us, and it is our opinion POC Marina, LLC is not a legitimate party to this appeal. 2 authority to dismiss an appeal because the appellants have failed to comply with a

requirement of the appellate rules, a court order, or a notice from the clerk requiring a

response or other action within a specified time. See id. R. 42.3(b), (c); Smith v. DC Civil

Constr., LLC, 521 S.W.3d 75, 76 (Tex. App.—San Antonio 2017, no pet.). Here,

appellants have failed to pay the appellate filing fee and has not established a statutory

exemption from payment. Accordingly, we reinstate the case, grant appellees’ motion to

dismiss, and dismiss the appeal. See TEX. R. APP. P. 42.3(c). Furthermore, we deny

appellants’ second amended motion to abate as well as any other motion pending in this

matter.

JENNY CRON Justice

Delivered and filed on the 1st day of May, 2025.