Beverly Randolph Mahone v. Employees Retirement System of Texas ( 2005 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00074-CV
Beverly Randolph Mahone, Appellant
v.
Employees Retirement System of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. GN302308, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
MEMORANDUM OPINION
Appellee Employees Retirement System of Texas moves to dismiss the appeal for
want of prosecution. Appellant’s brief was due May 16, 2005; an overdue notice was sent May 23,
2005, warning that the appeal would be dismissed for want of prosecution. See Tex. R. App. P.
38.8(a)(1). Appellant did not tender a brief or a motion for extension of time to file a brief. See id.
Appellant’s counsel sent a “suggestion of death” to this Court.
In a civil case, “[i]f a party to [the case] dies after the trial court renders judgment but
before the case has been finally disposed of on appeal . . . the appellate court will proceed to
adjudicate the appeal as if all parties were alive.” Tex. R. App. P. 7.1(a)(1); see Kenseth v. Dallas
Cty., 126 S.W.3d 584, 593-94 (Tex. App.—Dallas 2004, pet. denied). Although the certificate of
conference reflects opposition to the motion to dismiss, no response giving reasons for continuing
the appeal has been tendered to this Court in the approximately twenty days since the motion to
dismiss was filed. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App.
P. 42.3(a).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Prosecution
Filed: September 30, 2005
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