Susana Chavez and Ralph Richard Samudia v. Heraclio Eric Flores

• Court: Court of Appeals of Texas
• Decided: May 10, 2012
• Docket: 13-11-00309-CV
• Status: Published

Opinion

NUMBER 13-11-00309-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SUSANA CHAVEZ AND RALPH RICHARD SAMUDIA, Appellants,

v.

HERACLIO ERIC FLORES, ET AL., Appellees.

On appeal from the 93rd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Vela, and Perkes Memorandum Opinion Per Curiam

Appellants, Susana Chavez and Ralph Richard Samudia, attempt to appeal a

summary judgment rendered in favor of appellees, Heraclio Eric Flores, et al. We

dismiss the appeal for want of prosecution.

On November 10, 2011, the Court granted appellees’ motion to strike appellants’ brief and require brief to be redrawn. The appellants’ brief was ordered stricken and the

redrawn brief was due to be filed on or before December 12, 2011. Appellants’ counsel

filed a motion to withdraw as counsel and a motion to abate which was granted by the

Court on December 12, 2011. The appeal was abated until January 20, 2012, to allow

the appellants an opportunity to seek new counsel. Appellants were ordered to notify the

Court by January 20, 2012, if they had obtained new counsel.

Appellants did not contact this Court and on February 24, 2012, the Court

reinstated the appeal and notified appellants that the redrawn brief was due on or before

March 26, 2012. Appellants were notified that if they failed to file a brief, the Court may

affirm the judgment or dismiss the appeal. To date no response has been received from

appellants and the brief has not been filed.

If the appellate court determines that the briefing rules have been flagrantly

violated, it may require a brief to be amended, supplemented, or redrawn. TEX. R. APP.

P. 38.9(a); see id. R. 44.3 (“A court of appeals must not affirm or reverse a judgment or

dismiss an appeal for formal defects or irregularities in appellate procedure without

allowing a reasonable time to correct or amend the defects or irregularities.”). A

reasonable time is given to an appellant when he is provided with an opportunity to

amend his brief. See Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279,

284 (Tex. 1994). If the appellant files another brief that does not comply with the rules

of appellate procedure, the appellate court may strike the brief, prohibit the party from

filing another, and proceed as if the party had failed to file a brief. TEX. R. APP. P. 38.9(a).

Pursuant to Texas Rule of Appellate Procedure 38.8(a), where an appellant has failed to

2 file a brief, the appellate court may dismiss the appeal for want of prosecution. Id. R.

38.8(a).

Appellants have failed to file a brief. Accordingly, the appeal is DISMISSED FOR

WANT OF PROSECUTION. See TEX. R. APP. P. 38.8(a), 42.3(b)(c).

PER CURIAM

Delivered and filed the 10th day of May, 2012.