V & v. Industries Inc. v. D & S Precision Work Inc.

• Court: Court of Appeals of Texas
• Decided: July 20, 2023
• Docket: 01-21-00273-CV
• Status: Published

Opinion

Opinion issued July 20, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00273-CV ——————————— V & V INDUSTRIES, INC., Appellant V. D & S PRECISION WORK, INC., Appellee

On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2016-28854

MEMORANDUM OPINION

Appellant, V & V Industries, Inc., filed a notice of appeal from the trial court’s

February 25, 2021 final judgment. On September 23, 2021, appellant filed a motion

to abate the appeal, stating that the parties had reached an agreement to settle their

dispute, and requesting that the appeal be abated for a period of three months to allow appellant and appellee, D & S Precision Work, Inc. to perform the terms of

their agreement. On September 30, 2021, the Court granted appellant’s motion,

abating the appeal.

In the Court’s September 30, 2021 order, the parties were directed to file a

motion to reinstate and dismiss the appeal, or motion to reinstate and proceed with

the appeal, within ninety days of the date of the order. However, the parties failed

to file any motion in response to the Court’s September 30, 2021 order. Accordingly,

on June 27, 2023, the Court issued an order of continuing abatement directing the

parties to file, within ten days of the date of the order, a motion to reinstate and

dismiss the appeal, or otherwise advise the Court on the status of the proceedings.

The parties were further notified that the failure to respond to the Court’s June 27,

2023 order would result in dismissal of the appeal. See TEX. R. APP. P. 42.3(c)

(allowing dismissal of civil appeal where “appellant has failed to comply with . . . a

court order”).

On July 6, 2023, appellee filed a “Notice of Voluntary Dismissal Pursuant to

[Federal Rule of Civil Procedure] 41(a)(1)(A)(i).” In its notice, appellee notified the

Court that “the above-captioned action [was] voluntarily dismissed against

[appellant] V & V Industries[,] Inc.” Appellee’s notice does not seek any relief from

this Court. However, assuming the Court were to construe appellee’s notice as a

motion to dismiss the appeal, appellee’s notice does not include a certificate of

2 conference representing that appellee conferred with appellant, or that appellant is

unopposed to dismissal of the appeal. See TEX. R. APP. P. 10.1(a)(5). Appellee’s

notice also does not provide the Court with a basis to dismiss the appeal pursuant to

the Texas Rule of Appellate Procedure 42.1, which governs the voluntary dismissal

of appeals, because it was not filed by appellant or by agreement of the parties. See

TEX. R. APP. P. 42.1(a). No other party responded to the Court’s June 27, 2023

order.

We therefore conclude that the parties have not adequately responded to the

Court’s June 27, 2023 order, and the appeal should be dismissed for failure to

comply with an order of this Court. See TEX. R. APP. P. 42.3(c).

Accordingly, the Court reinstates the case to the Court’s active docket and

dismisses the appeal for failure to comply with the Court’s June 27, 2023 order. See

TEX. R. APP. P. 42.3(c), 43.2(f). We dismiss all other pending motions as moot.

PER CURIAM Panel consists of Chief Justice Adams and Justices Guerra and Farris.