Mandell Rhodes, Jr. v. Rissie Owens, Alvin Shaw and Charles Speier ( 2005 )

                                           NO. 12-05-00255-CV

              IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

                             TYLER, TEXAS

MANDELL RHODES, JR.,                             §     APPEAL FROM THE 241ST

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

RISSIE OWENS, ALVIN SHAW

AND CHARLES SPEIER,                              §     SMITH COUNTY, TEXAS

APPELLEES

                                                     MEMORANDUM OPINION

                                                                 PER CURIAM

This accelerated appeal is being dismissed for want of prosecution.  Tex. R. App. P. 42.3(b). Appellant perfected his appeal on June 16, 2005. Thereafter, the clerk’s record was filed on August 18, 2005, making Appellant’s brief due on or before September 7, 2005.  Upon Appellant’s motion, the time for filing his brief was extended until October 27, 2005. When Appellant failed to file his brief within the required time, this Court notified him on November 1, 2005 that the brief was past due and warned that if no motion for extension of time to file the brief were received by November 14, 2005, the appeal would be dismissed for want of prosecution under Texas Rule of Appellate Procedure 42.3(b). The notice further informed Appellant that the motion for extension of time must contain a reasonable explanation for his failure to file the brief and a showing that Appellee had not suffered material injury thereby.

To date, Appellant has not filed his brief or filed a motion for extension of time. Accordingly, the appeal is dismissed for want of prosecution.  See Tex. R. App. P. 42.3(b).

Opinion delivered November 16, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                                                                            (PUBLISH)

[COMMENT1] 

                                                COURT OF APPEALS

                     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                                             JUDGMENT

                                                         NO. 12-05-00255-CV

                                                          NOVEMBER 16, 2005

                                                      MANDELL RHODES, JR.,

                                                                      Appellant

                                                                            V.

                                                  RISSIE OWENS, ALVIN SHAW

                                                       AND CHARLES SPEIER,

                                                                     Appellees

_____________________________________________________________________________

                                         Appeal from the 241st Judicial District Court

                                      of Smith County, Texas. (Tr.Ct.No. 04-3434-C)

_____________________________________________________________________________

THIS CAUSE came on to be heard on the transcript of the record, and the same being inspected, it is the opinion of this Court that the appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED that the appeal, be, and hereby is, Dismissed; that all costs of this appeal are hereby assessed against Appellant, Mandell Rhodes, Jr., for  which execution may issue; and that this decision be certified to the court below for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

                                   THE STATE OF TEXAS

                          M A N D A T E

                                 *********************************************

TO THE 241ST JUDICIAL DISTRICT COURT OF SMITH COUNTY, GREETINGS:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 16th day of November, 2005, the cause upon appeal to revise or reverse your judgment between

                                              MANDELL RHODES, JR., Appellant

                                      NO. 12-05-00255-CV; Trial Court No. 04-3434-C

                                                            By per curiam opinion.

                                                  RISSIE OWENS, ALVIN SHAW

                                               AND CHARLES SPEIER, Appellees

was determined; and therein our said Court made its order in these words:

“THIS CAUSE came on to be heard on the transcript of the record, and the same being inspected, it is the opinion of this Court that the appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED that the appeal, be, and hereby is, Dismissed; that all costs of this appeal are hereby assessed against Appellant, Mandell Rhodes, Jr., for  which execution may issue; and that this decision be certified to the court below for observance.”

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200____.

CATHY S. LUSK, CLERK

By:_______________________________

     Deputy Clerk

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 [COMMENT1]J.25       CIVIL - REVERSED & DISMISSED WITHOUT PREJUDICE

           Each party pays their own way in both courts.