amilee-wendt-v-the-lamar-council-of-co-owners-inc-truly-nolen-of ( 2002 )

NO. 07-01-0293-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 8, 2002

______________________________



AMILEE WENDT, APPELLANT

V.

THE LAMAR COUNCIL OF CO-OWNERS, TRULY NOLEN OF AMERICA, INC., INDIVIDUALLY AND D/B/A TRULY NOLEN EXTERMINATING, INC. AND ALICE LOSSEN, APPELLEES

_________________________________

FROM THE 269TH DISTRICT COURT OF HARRIS COUNTY;

NO. 96-59117; HONORABLE JOHN WOOLDRIDGE, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Amilee Wendt perfected this appeal from a take nothing judgment on her negligence claims against appellees. Both the clerk's record and reporter's record have been filed. After a stay was granted on November 6, 2001, appellant's brief was due to be filed on December 6, 2001. On March 6, 2002, the appeal was dismissed for failure to file a brief and not complying with an order of this Court. In response to the dismissal, appellant filed an unopposed motion to retain the appeal and clarify the briefing schedule. In treating the motion as a timely motion for extension of time to file a motion for rehearing, the Court granted the motion, withdrew its order of March 6, 2002, and ordered that appellant's brief be filed no later than June 1, 2002. ⁽¹⁾ Neither the brief nor a motion for extension of time in which to do so was filed. By letter dated June 13, 2002, this Court notified counsel of the defect and also directed counsel to reasonably explain the failure to file a brief together with a showing that appellees have not been significantly injured by the delay by June 24, 2002. Counsel did not respond.

Accordingly, we dismiss the appeal for want of prosecution and failure to comply with an order of this Court. See Tex. R. App. P. 38.8(a)(1) and 42.3(b) and (c).

Don H. Reavis

Justice

Do not publish.

1. June 1 fell on a Saturday, making the brief due on Monday, June 3, 2002. Tex. R. App. P. 4.1(a).

underline">MEMORANDUM OPINION

          Appellant, Charlotte Welch, perfected an appeal from the trial court’s summary judgment. Welch has now filed a motion to dismiss her appeal and has conformed to the requirements of Rule 10.1 of the Texas Rules of Appellate Procedure. This disposition is authorized by Rule 42.1(a)(1) and 43.2(f) of the Texas Rules of Appellate Procedure. Finding the motion complies with the requirements of Rules 10.1 and 42.1(a), we dismiss the appeal. Further, the court will tax costs against Welch. Tex. R. App. P. 42.1(d).

          Having disposed of this appeal at Welch’s request, we will not entertain a motion for rehearing and our mandate shall issue forthwith.

                                                                Per Curiam