the Estate of Adam Boyd Knetsar, Tracy Nicole Knetsar, Amber Lynn Knetsar, Leslie P. Knetsar and Ronald B. Knetsar v. AAA Asphalt Paving, Inc.

Opinion

Opinion issued June 28, 2012.

In The Court of Appeals For The First District of Texas

NO. 01-11-00089-CV

THE ESTATE OF ADAM BOYD KNETSAR, TRACY NICOLE KNETSAR, AMBER LYNN KNETSAR, LESLIE P. KNETSAR, AND RONALD B. KNETSAR, Appellants

V.

AAA ASPHALT PAVING, INC., Appellee

On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2007-45917

MEMORANDUM OPINION

On July 28, 2011, the Court dismissed this case for want of prosecution based on appellants’ failure to pay or make payment arrangements for the clerk’s record.

See TEX. R. APP. P. 37.3(b). On August 12, 2011, appellants filed a motion to

reconsider, in which appellants stated that they were “making separate and

contemporaneous arrangements to tender the necessary record from the trial court

below.” The clerk’s record applied for by appellants was filed on August 19, 2011.

On October 17, 2011, this Court granted appellants’ motion to reconsider and

submitted the case on the clerk’s record filed on August 19, 2011.1 Appellants’

brief was therefore due on November 16, 2011.

On February 17, 2012, the Clerk of this Court notified appellants that their

brief was past due and provided appellants with a deadline of March 8, 2012 for

either filing a brief or filing a motion for extension.

Appellants filed a motion for extension of time on March 9, 2012. In their

motion, appellants state that “the clerk’s record from Harris [sic] County District

Clerk in this cause is wholly insufficient.” Appellants complain that “in excess of

80% of the pages comprising the original clerk’s record herein has no relevance to

the issue on appeal” and state that the appellee has requested, and obtained, a

supplement to the original clerk’s record.2 Appellants inform the Court that “a

1 There is no reporter’s record in the case.

2 A supplemental clerk’s record was filed on November 15, 2011, after appellee significant number of additional items are still missing from clerk’s [sic] record in

order to make it complete” and that the missing documents are “essential to the

presentation of Appellants’ argument on appeal.”3 Appellants aver in their motion

that their brief “can be filed within a week” of the filing of a supplemental clerk’s

record, and they request “that they be allowed to file their brief within one week of

the date of which the Harris County District Clerk completes and supplements its

clerk’s record.”

On May 3, 2012, the district clerk filed the supplemental clerk’s record

applied for by appellants.

Appellants’ brief was originally due on November 16, 2011. See TEX. R.

APP. P. 38.6(a) (governing time to file brief). Nevertheless, Appellants have yet to

file a brief. Further, in their motion for extension of time, the primary explanation4

applied for it with the trial court clerk.

3 Between the clerk’s record filed August 19, 2011 and the first supplemental clerk’s record filed November 15, 2011, the district clerk satisfied the requirements of rule 34.5(a). See TEX. R. APP. P. 34.5(a). If appellants wanted additional materials beyond those required by rule 34.5(a), it was incumbent upon them to request that additional items be included in the record or request a supplemental record. The deadline for filing the brief is not modified thereby. See TEX. R. APP. P. 34.5(a)(13), (b), (c), 38.6(a).

4 The other explanations offered by appellants consist of personal issues that do not adequately explain why appellants were unable to file a brief for the approximately five months between this Court’s order of October 10, 2011, which reinstated the case and ordered appellant’s brief to be filed within 30 days, and appellant’s motion appellants provide for their failure to file a brief, despite having then had

approximately five months in which to file it, is the alleged inadequacy of the clerk’s

record. Any inadequacy in the clerk’s record, however, is appellants’ fault, as the

district clerk filed the record requested by the appellants. Because the record that

was filed was requested and paid for by appellants, appellants may not explain their

failure to timely file a brief on any alleged deficiency in the record. See TEX. R.

APP. P. 35.3(a)(2) (requiring trial court clerk to prepare, certify, and file clerk’s

record only after fee has been paid). Moreover, appellants failed to file their brief

within the time period requested by their motion—one week after the supplemental

record was filed. Finally, appellants have now failed to file a brief for more than

eight months, and the only explanation offered for the additional three-month delay

is counsel’s statement, in a letter to the Clerk of the Court filed June 14, 2012, that he

has accepted new cases and prioritized them over this appeal.

Accordingly, we dismiss the appeal for want of prosecution for failure to

timely file a brief. See TEX. R. APP. P. 38.8(a) (governing failure of appellant to file

brief), 42.3(b) (allowing involuntary dismissal of case).

We dismiss any pending motions as moot.

PER CURIAM

for extension of time, filed on March 9, 2012. See TEX. R. APP. P. 10.5(b)(1)(C). Panel consists of Justices Higley, Sharp, and Huddle.