Richard Cecil Peterson and Alma Peterson v. John Lawrence Jimenez, M.D., and Brian Phillip Perry, M.D. ( 2015 )

ACCEPTED 04-15-00417-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/3/2015 2:33:40 PM KEITH HOTTLE CLERK No. 04-15-00417-CV FILED IN 4th COURT OF APPEALS In the SAN ANTONIO, TEXAS Court of Appeals 11/3/2015 2:33:40 PM For the Fourth District KEITH E. HOTTLE San Antonio, Texas Clerk RICHARD CECIL PETERSON AND ALMA PETERSON, Appellants v. JOHN LAWRENCE JIMENEZ, M.D. AND BRIAN PHILLIP PERRY, M.D. Appellees MOTION TO DISMISS FOR FAILURE TO PROSECUTE TO THE HONORABLE COURT OF APPEALS: Appellees John Lawrence Jimenez, M.D. and Brian Phillip Perry, M.D. file this Motion to Dismiss for Failure to Prosecute. I. Introduction Appellants are Richard Cecil Peterson and Alma Peterson. Appellees are John Lawrence Jimenez, M.D. and Brian Phillip Perry, M.D. Appellants filed their notice of appeal on July 1, 2015. The clerk’s record was filed on August 5, 2015, and the reporter’s record was filed on August 11, 2015. Then, on August 11, 2015 a supplemental clerk’s record was filed, and on August 19, 2015 a second 1 reporter’s record was filed. Therefore, appellants’ brief was due on September 18, 2015. However, appellants failed to file their brief or a motion for extension of time. As a result, this Court ordered appellants to file an explanation for failing to file their brief by October 5, 2015. In response, appellants sought a 45-day extension to file their brief, providing that “Counsel for Appellants is a solo practitioner and has been laboring under an unusually heavy schedule and needs additional time to prepare Appellants’ brief.” Motion for Extension (9.29.15). On October 1, 2015, this Court issued an order that granted appellants a 45- day extension, extending the deadline for appellants to file their brief until November 2, 2015. Also in the order, this Court set strict requirements before appellants could seek an additional extension. (“Appellants are advised that no further extensions of time will be granted absent a motion that (1) demonstrates extraordinary circumstances justifying further delay, (2) advises the court of the efforts counsel has expended in preparing the brief, and (3) provides the court reasonable assurance that the brief will be completed and filed by the requested extended deadline. The court does not generally consider a heavy work schedule to be an extraordinary circumstance.”). However, even with the additional 45-day extension appellants still failed to file their brief or a timely motion for extension of time that meets the strict requirements set out by this Court. 2 II. Argument & Authorities This Court has the authority to dismiss this appeal for want of prosecution or, in the alternative, to affirm the trial court’s judgment. TEX. R. APP. P. 38.8, 42.3(b). Appellants’ continued failure to comply with this Court’s deadlines establishes a lack of willingness to prosecute this appeal, which continues to harm appellees. The clerk’s and reporter’s records before this Court are not extensive and the judgment being appealed does not present extensive issues to be addressed on appeal. Appellants’ claims against appellees were dismissed following summary judgment after the trial court held the doctrine of res ipsa loquitar did not apply to any claims against appellees. CR 287. Appellants’ delay in seeking review of the trial court’s ruling continues to harm appellees by continuing to incur attorney’s fee costs and the lack of finality of the judgment. Appellants continue to disregard this Court’s deadlines and delay the appellate process without a proper explanation for doing so. In light of appellants’ failure to file their brief in accordance with this Court’s October 1, 2015 order, appellees respectfully request this Court dismiss the appeal, or in the alternative, affirm the trial court’s judgment. See TEX. R. APP. P. 38.8, 42.3(b). III. Prayer For the above reasons, appellees ask the Court to grant this motion and dismiss this appeal or, in the alternative, to affirm the trial court’s judgment and 3 grant appellee judgment for costs. BRIN & BRIN, P.C. /s/ Lorien Whyte Lorien Whyte State Bar No. 24042440 6223 IH 10 West San Antonio, Texas 78201 (210) 341-9711 telephone (210) 341-1854 facsimile ATTORNEYS FOR APPELLEE JOHN LAWRENCE JIMENEZ, M.D. and BRIAN PHILLIP PERRY, M.D. CERTIFICATE OF CONFERENCE I certify that I have conferred with Richard Nunez, counsel for appellants, and Mr. Nunez responded that he is opposed to this Motion to Dismiss for Failure to Prosecute. /s/ Lorien Whyte Lorien Whyte CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of November, 2015, in accordance with the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure, a true and correct copy of the foregoing document has been forwarded to the following: Richard J.W. Nunez 144 E. Price Road Brownsville, Texas 78521 Phone: (956) 541-8502 Facsimile: (956) 541-8623 /s/ Lorien Whyte Lorien Whyte 4