Texas Builders Insurance Co. v. Calvin Molder ( 2007 )

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TEXAS BUILDERS INSURANCE COMPANY, Appellant, v. CALVIN MOLDER, Appellee.

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No. 08-07-00200-CV Appeal from the 355th District Court of Hood County, Texas (TC# C-2005394)

MEMORANDUM OPINION

Pending before the Court on our own motion is the determination whether this appeal should be dismissed for want of prosecution pursuant to Tex.R.App.P. 38.8. Having found that Appellant has failed to file a brief, and has not requested an extension of time to do so, we will dismiss the appeal.

This Court possesses the authority to dismiss an appeal for want of prosecution when the appellant fails to file a brief within the time proscribed, and provides no reasonable explanation for such failure. Tex.R.App.P. 38.8(a)(1). By letter dated September 27, 2007, the clerk of this Court informed Appellant of the Court's intent to dismiss this appeal for want of prosecution due to Appellant's failure to file a brief, or request an extension of time to do so. The Court advised Appellant that the appeal would be dismissed without further notice unless he responded within ten days and provided a reason why the appeal should be continued. See Tex.R.App.P. 38.8. Appellant has not responded to the clerk's notice. We see no purpose that would be served by maintaining this appeal at this stage in the proceedings. Therefore, pursuant to Tex.R.App.P. 38.8(a)(1), we dismiss the appeal for want of prosecution.

Appellee has also filed a motion for attorney's fees based on the trial court's summary judgment order. In addition to granting summary judgment in Appellee's favor, the trial court ordered Appellant to pay $10,000, for attorneys fees and costs, in the event Appellant is unsuccessful in an appeal to the Court of Appeals. Due to Appellant's failure to pursue this appeal, Appellee is the prevailing party in the suit, having been granted summary judgment in the case, and is entitled to attorney's fees as awarded by the trial court. See Hagberg v. City of Pasadena, 224 S.W.3d 477, 483-84 (Tex.App.--Houston [1st Dist.] 2007, no pet.), citing Pac. Employers Ins. Co. v. Torres, 174 S.W.3d 344, 346-47 (Tex.App.--El Paso 2005, no pet.). As such, in addition to dismissing the appeal for want of prosecution, we award Appellee the sum of $10,000 for attorney's fees and costs associated with this appeal in accordance with the summary judgment.

December 13, 2007

DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.