John R. Soard v. Terry Thorn, Shelia Smith and Mary Page ( 2015 )

ACCEPTED
12-14-00211-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
6/4/2015 10:27:54 AM
CATHY LUSK
CLERK
No. 12-14-00211-CV
JOHN R. SOARD, § IN THE COURT OF FILED
APPEALSIN
§ 12th COURT OF
TYLER, TEXAS
APPEALS
Appellant, § 6/4/2015 10:27:54 AM
§ CATHY S. LUSK
v. § TWELFTH DISTRICT ClerkOF
§ TEXAS
TERRY THORN, SHEILA SMITH, §
AND MARY PAGE §
§
Appellees. § SITTING IN TYLER, TEXAS
APPELLEE’S MOTION TO DISMISS APPELLANT’S APPEAL
TO THE HONORABLE TYLER COURT OF APPEALS:
Appellee Terry Thorn (“Appellee”) files this Motion to Dismiss
Appellant’s Appeal as follows:
SUMMARY OF ARGUMENT
After numerous extensions and without adequate explanation,
Appellant John R. Soard (“Soard” or “Appellant”) has failed to file his brief,
which was due April 6, 2015. Soard has also failed to comply with the Clerk’s
April 9, 2015 notice requiring him to file a motion for extension of time
containing a reasonable explanation for his failure to timely file his
Appellant’s Brief no later than April 20, 2015. Accordingly, Appellee requests
dismissal of his appeal in its entirety for want of prosecution under Tex. R.
App. P. 42.3(b) and for Appellant’s failure to comply with the Clerk’s notice
under Tex. R. App. P. 42.3(c).
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BACKGROUND
Soard filed his notice of appeal on April 4, 2014. Since that time, he
has filed numerous letters complaining of issues related to the
completeness of the Clerk’s Record and Reporter’s Record and received
numerous extensions of time to file his brief.
On March 6, 2015, the Court sent notice to the parties that the case
was to be submitted on the Clerk’s Record alone. It ordered Soard to file his
Appellant’s Brief on or before April 6, 2015. After Soard failed to file his
brief, the Clerk sent its third Notice of Late Brief on April 9, 2015. The Clerk
notified Soard that his “appeal may be dismissed for want of prosecution
under Tex. R. App. P. 38.8(a)(1) unless a motion for extension of time,
containing a reasonable explanation for such failure and showing that
Appellee has not suffered material injury thereby, is filed no later than April
20, 2015.” Soard has since filed several more letters, raising the same
general complaints he has previously raised regarding the completeness of
the record, but he has not moved for an extension of time or explained his
failure to file his brief. Thus, he has not complied with the Clerk’s notice.
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ARGUMENT
Under Rule 42.3(b), a court of appeals, on the appellee’s motion or on
its own, may dismiss an appeal for want of prosecution when the appellant
fails to timely file its brief. Tex. R. App. P. 42.3(b). A court of appeals may
also dismiss an appeal when an appellant does not comply with a notice
from the clerk requiring a response within a specified time. Tex. R. App. P.
42.3(c).
Soard has repeatedly failed to file his Appellant’s Brief, and despite
this Court’s granting several extensions of time, ordering that the case be
submitted on the Clerk’s Record alone, and imposing an April 6, 2015
deadline for Soard to file his Appellant’s Brief, he still has not done so. Nor
has he filed a response to the Clerk’s April 9, 2015 notice. Soard has been
cautioned by the Court and has failed to comply. Because pro se litigants
must be held to the same standards as any other litigant and must comply
with applicable and mandatory rules of pleading and procedure, Soard’s
failure to comply with the briefing deadline and Clerk’s notice warrants
dismissal of this appeal. Tex. R. App. P. 42.3(b) & (c); see also Morris v.
Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—Houston
[1st Dist.] 2011, no pet.) (“To apply a different set of rules to pro se litigants
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would be to give them an unfair advantage over litigants represented by
counsel.”).
PRAYER
Appellee Terry Thorn respectfully requests that the Court:
1.) Dismiss Appellant’s appeal in its entirety; and
2.) Award such other relief to which Appellee is entitled.
Respectfully submitted,
By: /s/ Michael A. Yanof
Michael A. Yanof
State Bar No. 24003215
Cassie J. Dallas
State Bar No. 24074105
Thompson, Coe, Cousins & Irons,
L.L.P.
700 North Pearl St., 25th Floor
Dallas, Texas 75201
Telephone: (214) 871-8200
Facsimile: (214) 871-8209
Email: myanof@thompsoncoe.com
ATTORNEYS FOR APPELLEE TERRY
THORN
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CERTIFICATE OF COMPLIANCE
I certify that this Motion to Dismiss Appellant’s Appeal complies with
Tex. R. App. P. 9.4. As to its length, it contains 575 words (not including the
matters excluded by Tex. R. App. P. 9.4(i)(1)). Notwithstanding, Rule 9.4(i)
does not govern motions.
/s/ Michael A. Yanof___________
Michael A. Yanof
CERTIFICATE OF SERVICE
I hereby certify that on June 4, 2015, a true and correct copy of the
foregoing document was served via certified mail, return receipt requested,
to:
John R. Soard Sheila Smith
38 Delsie St. The Law Office of Sheila Smith
Clarksville, AR 72830 P.O. Box 10
Frankston, TX 75763
Mary Page
2201 North Jackson Street
Palestine, TX 75801
/s/ Michael A. Yanof___________
Michael A. Yanof
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