Wells Fargo Bank, N. A. v. Anthony C. Aguilar ( 2004 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WELLS FARGO BANK, N.A.,                            )

                                                                              )     No.  08-04-00142-CV

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     346th District Court

ANTHONY C. AGUILAR,                                  )

                                                                              )     of El Paso County, Texas

Appellee.                           )

                                                                              )     (TC# 2003-5280)

                                                                              )

MEMORANDUM  OPINION

Pending before the Court on its own initiative is the dismissal of this appeal for want of prosecution.  Finding no Appellant=s brief has been filed, we dismiss the appeal.

Tex.R.App.P. 42.3 states:

Under the following circumstances, on any party=s motion--or on its own initiative after giving ten days= notice to all parties--the appellate court may dismiss the appeal or affirm the appealed judgment or order.  Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a)        for want of jurisdiction;

(b)        for want of prosecution; or

(c)        because 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.

This Court possesses the authority to dismiss an appeal for want of prosecution when an appellant in a civil case fails to timely file its brief and gives no reasonable explanation for such failure. Tex.R.App.P. 38.8(a)(1).

On June 7, 2004, Appellant timely filed a notice of appeal in this cause.  On July 9, 2004, this Court determined that case was appropriate for referral to mediation and ordered the case referred to mediation.  The mediator=s report informed the Court that there was no resolution of the case and no further negotiations were planned.  On September 24, 2004, the Court granted Appellee=s motion to reinstate the appellate timetable. The clerk=s record and reporter=s record were filed on October 11, 2004. Appellant=s brief was due on November 10, 2004.  As of this date, no Appellant=s brief nor motion for extension of time has been filed with the Court.  On November 18, 2004, this court=s clerk sent a letter to the parties indicating the Court=s intent to dismiss the case for want of prosecution absent a response from any party within ten days to show grounds for continuing the appeal.  No response has been received as of this date.  Accordingly, pursuant to Tex.R.App.P. 42.3(b) and (c), we dismiss the appeal for want of prosecution.

December 30, 2004                                        

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.