John Reed, Jr. v. Farmers Insurance Group ( 2015 )

ACCEPTED
03-14-00485-CV
5249043
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/12/2015 1:29:30 PM
JEFFREY D. KYLE
CLERK
03-14-00485-CV
IN THE THIRD COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
5/12/2015 1:29:30 PM
JEFFREY D. KYLE
JOHN REED, JR., Clerk
Appellant
v.
FARMERS INSURANCE GROUP,
Appellee
On Appeal from Cause No. 259,941-C
In the 169th Judicial District Court of Bell County, Texas
APPELLEE FARMERS INSURANCE GROUP’S
MOTION TO DISMISS APPEAL
UNDER TEXAS RULE OF APPELLATE PROCEDURE 42.3
Kevin G. Cain Levon G. Hovnatanian Christopher W. Martin
State Bar No. 24012371 State Bar No. 10059825 State Bar No. 13057620
cain@mdjwlaw.com hovnatanian@mdjwlaw.com martin@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700—Telephone
(713) 222-0101—Facsimile
Michael Watson
State Bar No. 24008246
watson@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
16000 N. Dallas Parkway, Suite 800
Dallas, Texas 75248
(214) 420-5500—Telephone
(214) 420-5501—Facsimile
TO THE HONORABLE COURT OF APPEALS:
Comes now the appellee, Farmers Insurance Group (“Farmers”), and files
this, its motion to dismiss appeal. Farmers respectfully shows the Court as
follows.
The Facts
On August 5, 2014, John Reed, Jr. filed a notice of appeal in this Court. On
October 27, the reporter’s record was filed. On October 29, the clerk’s record was
filed. That made the deadline for Reed to file his brief Monday, December 1,
2014. See TEX. R. APP. P. 38.6(a) (setting deadline for appellant’s brief in non-
accelerated appeal as 30 days from date complete record was filed); TEX. R. APP. P.
4.1(a) (method of computing time).
Now, over five months later, Reed still has not filed a brief. The Court
granted him extensions of time on November 19, January 20, February 9, and
March 13. After four extensions, Reed still has not filed a brief.
On April 29, Reed filed yet another motion for extension of time. In the
motion, he candidly stated that “Appellant has previously filed three or four
extensions.” The motion does not explain his failure to file a brief.
On April 29, the Court’s Clerk wrote Reed a letter which stated in relevant
part:
Appellant’s brief was due in this Court on April 27, 2015 and is
overdue. See Tex. R. App. P. 38.6(a). If appellant fails to file a brief,
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the Court may dismiss the appeal for want of prosecution unless
appellant reasonably explains the failure and appellee is not
significantly injured by that failure. If this Court does not receive a
satisfactory response to this notice on or before Monday, May 11,
2015, the Court may dismiss the appeal for want of prosecution. . . .
(Emphasis in original.) Reed has not filed a response.
The Court Should Dismiss The Appeal.
Based on the above facts, the Court should dismiss Reed’s appeal on either
of two grounds.
A. In Violation of the Clerk’s Notice, Reed has Failed to Explain his
Failure to File a Brief.
Under Texas Rule of Appellate Procedure 42.3(c), this Court may, on any
party’s motion, dismiss an appeal or affirm the judgment if the appellant “has
failed to comply with a requirement of these rules, a court order, or a notice from
the clerk requiring a response or other action within a specified time.” Reed has
failed to comply with the notice from this Court’s Clerk requiring that he provide a
response by May 11, 2015 that reasonably explains his failure to file a brief. The
Court should therefore dismiss Reed’s appeal. See Eich v. Glenn, 2010 WL
4629645, at *1 (Tex. App.—Austin 2010, no pet.) (dismissing appeal after warning
appellant that appeal could be dismissed if he failed to reasonably explain failure to
file brief and appellant did not file response); Resendez v. Alvarado, 2003 WL
1091033, at *1 (Tex. App.—Corpus Christi 2003, no pet.) (dismissing appeal after
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considering “appellant’s failure to file a proper appellate brief, this Court’s notice,
and appellant’s failure to respond”).
B. Reed has not Prosecuted his Appeal.
Under Texas Rule of Appellate Procedure 42.3(b), this Court may, on any
party’s motion, dismiss an appeal or affirm the judgment if the appellant has failed
to prosecute his appeal. That is the case here. Despite four extensions, Reed still
has not filed a brief—and his original deadline was over five months ago.
With his unprosecuted appeal, Reed is causing Farmers to needlessly incur
still more attorneys’ fees and to waste even more time. See Ball v. City of
Chicago, 2 F.3d 752, 759 (7th Cir. 1993). This Court should dismiss Reed’s
appeal for want of prosecution. See Frisbie v. State, 1999 WL 46698, at *1 (Tex.
App.—Austin 1999, no pet.) (not designated for publication) (dismissing appeal
for want of prosecution where “appellant has not submitted a brief”); Lettieri v.
Lettieri, 1997 WL 499697, at *1 (Tex. App.—Dallas 1997, no pet.) (not designated
for publication) (dismissing appeal for want of prosecution where appellant failed
to file brief within time allowed).
Conclusion and Prayer For Relief
Farmers respectfully asks the Court to dismiss the appeal.
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Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ Levon G. Hovnatanian
Levon G. Hovnatanian
State Bar No. 10059825
hovnatanian@mdjwlaw.com
Kevin G. Cain
State Bar No. 24012371
cain@mdjwlaw.com
Christopher W. Martin
State Bar No. 13057620
martin@mdjwlaw.com
808 Travis, 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ Michael Watson
Michael Watson
State Bar No. 24008246
watson@mdjwlaw.com
16000 N. Dallas Parkway, Suite 800
Dallas, TX 75248
(214) 420-5500 – Telephone
(214) 420-5501 – Facsimile
ATTORNEYS FOR APPELLEE
FARMERS INSURANCE GROUP
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CERTIFICATE OF CONFERENCE
This is to certify that I conferred with appellant Mr. John Reed, Jr. on May
12, 2015, regarding whether he opposes this motion, and he advised that he
opposes it.
/s/ Levon G. Hovnatanian
Levon G. Hovnatanian
CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated motion to dismiss appeal
contains 684 words.
/s/ Levon G. Hovnatanian
Levon G. Hovnatanian
Dated: May 12, 2015
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
motion to dismiss appeal has been forwarded by the method(s) indicated below to
the following persons on this 12th day of May, 2015.
Mr. John Reed, Jr., pro se
715 S. 32nd Street
Temple, Texas 76501
(Appellant)
(via CM-RRR 7014 1200 0000 7830 1280)
/s/ Levon G. Hovnatanian
Levon G. Hovnatanian
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