Lynda Risinger-Hersey and Reginald S.Y. Lee v. Cynthia Hersey, Trustee of the Frank J. Hersey Family Trust, Justin Hersey and Travis J. Hersey ( 2004 )

NO. 07-03-0219-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 19, 2004 ______________________________ LYNDA RISINGER-HERSEY AND REGINALD S.Y. LEE, APPELLANTS

V.

CYNTHIA HERSEY, TRUSTEE OF THE FRANK J. HERSEY FAMILY TRUST, JUSTIN HERSEY AND TRAVIS HERSEY, ET AL., APPELLEES _________________________________



FROM THE COUNTY COURT AT LAW NO. 1 OF MONTGOMERY COUNTY;

NO. 01-15925-P; HONORABLE DENNIS WATSON, JUDGE _______________________________

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

ON MOTION TO DISMISS

Appellees and cross-appellants Cynthia Hersey, as trustee of the Frank J. Hersey Family Trust, Justin J. Hersey, and Travis Hersey (the Herseys) have filed a motion seeking dismissal of the appeal of appellant and cross-appellee Lynda Risinger-Hersey. Risinger-Hersey and Reginald S.Y. Lee each filed a notice of appeal from a judgment non obstante veredicto in favor of the Herseys. Lee filed his appellant's brief on June 24, 2004. No brief has been filed on behalf of Risinger-Hersey. Without citing the governing Rules of Appellate Procedure, the Herseys' motion, filed October 6, 2004, seeks dismissal of Risinger-Hersey's appeal based on her failure to file a brief. The motion also recites that the Herseys believed they had reached a settlement with Risinger-Hersey on April 5, 2004, but she had failed to execute the settlement documents. Attached to the Herseys' motion is a three-page handwritten agreement with insertions and interlineations. It is signed by counsel for the Herseys and Risinger-Hersey. Also attached to the motion is a ten-page printed agreement signed by the Herseys but not by Risinger-Hersey.

Rule of Appellate Procedure 38.6(a) provides an appellant must file a brief within 30 days of the date when both the reporter's record and clerk's record are filed. At the Herseys' request a supplemental clerk's record was filed August 24, 2004. The appellants' briefs were due within 30 days, making them due September 23, 2004. Risinger-Hersey has not filed a brief or motion for extension of time in which to file her brief. See Tex. R. App. P. 38.6(d). In response to the Herseys' motion we directed Risinger-Hersey to explain her failure to timely file a brief. See Tex. R. App. P. 38.8(a)(1).

Risinger-Hersey has filed a response to the motion to dismiss. In that document she provides information concerning efforts to settle the dispute omitted from the Herseys' motion. She agrees these parties "entered a written settlement agreement" on April 5, 2004, and that both parties drafted closing documents. In the course of resolving the differences between those drafts the Herseys filed a motion to compel the settlement agreement in the trial court. According to Risinger-Hersey the trial court held hearings in July and September at which the remaining differences were resolved, and a conforming document was prepared and sent to counsel for the Herseys. Risinger-Hersey further states that when the executed document was returned, it indicated execution by Cynthia Hersey on a date in August prior to the final revisions. On October 4, 2004, two days before the Herseys' motion to dismiss was filed, Risinger-Hersey asserts, she signed the written settlement agreement, provided it to counsel for the Herseys, and subsequently paid the Herseys $25,000 in conformity with the agreement. She also asserts she has not received copies signed by the Herseys after the final revisions. No signed agreement has been filed or attached to Risinger-Hersey's response.

In her response, Risinger-Hersey states she "has no objection to" dismissal of her appeal as long as we also dismiss the Herseys' cross-appeal as to her. She then prays for dismissal of those appeals as moot based on the settlement agreement.

The Rules of Appellate Procedure under which we must operate authorize dismissal of an appeal only in specific circumstances. Voluntary dismissals may be made when an appellant requests dismissal of her own appeal; parties may file a written agreement seeking another disposition. Tex. R. App. P. 42.1(a). We may involuntarily dismiss an appeal for want of jurisdiction, for want of prosecution, or as a sanction. Tex. R. App. P. 42.3.

The Herseys' motion to dismiss was for want of prosecution due to Risinger-Hersey's failure to timely file a brief. See Tex. R. App. P. 38.8(a), 42.3(b). We find Risinger-Hersey's response showing the exchange of settlement documents for execution before the due date for her brief adequately explains her failure to file a brief and we will not dismiss her appeal on that basis at this time.

Risinger-Hersey's response seeks dismissal of her appeal and the Hersey's cross-appeal as moot. Because mootness deprives a court of subject-matter jurisdiction, State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994), dismissal would be proper under Rule 42.3(a). However, the record before us fails to show the controversy between these parties is moot. Neither party has filed a document signed by the parties to the appeals establishing the issues presented in these appeals have been settled.

Moreover, we may not grant voluntary dismissal or other disposition of the appeals under Rule 42.1(a). Risinger-Hersey's response is not fairly read as a request to dismiss her appeal under Rule 42.1(a)(1) because the request is conditioned on dismissal of the cross-appeal. We may not dismiss the cross-appeal because the Herseys' have not requested dismissal and no party has filed an agreement seeking a disposition in accordance with Rule 42.1(a)(2).

Both appeals are continued on the court's docket. Risinger-Hersey's appeal will be subject to dismissal for want of prosecution if she has not filed a brief within 30 days from the date of this order. Any party may establish the appeals have become moot and seek dismissal for want of jurisdiction, seek voluntary dismissal by motion (which may be in the form of a joint motion applicable to both parties' appeals) under Rule 42.1(a)(1), or seek another disposition of the appeal by an agreement complying with Rule 42.1(a)(2).

Per Curiam