Germaine James v. Westbury Manor ( 2007 )

Dismissed and Memorandum Opinion filed November 29, 2007

Dismissed and Memorandum Opinion filed November 29, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00982-CV

____________

GERMAINE JAMES, Appellant

V.

WESTBURY MANOR, Appellee

On Appeal from the County Civil Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 868533

M E M O R A N D U M   O P I N I O N

According to her notice of appeal, appellant seeks to appeal a judgment signed August 14, 2006.  Appellant filed a timely motion for new trial.  Her notice of appeal and affidavit of indigence were timely filed on October 29, 2006, within 90 days of judgment.  See Tex. R. App. P. 26.1(a).

The trial court signed an order sustaining the contest to appellant=s affidavit of indigence.  Appellant appealed the denial of his claim of indigence.  Pursuant to our order, the trial court had a partial record related to indigency filed with the clerk of this court..^[1]  See In re Arroyo, 988 S.W.2d 737, 738-39 (Tex. 1998).  On September 27, 2007, the trial court filed its findings which concluded appellant was not entitled to proceed without the advance payment of costs and the appeal is frivolous.  See Tex. Civ. Prac. & Rem. Code Ann. ' 13.003(a).

By order filed October 4, 2007, this court upheld the trial court=s order sustaining the contest to appellant=s affidavit of indigence.  The court then ordered appellant to pay or make arrangements to pay for the complete clerk=s record necessary to this appeal.  See Tex. R. App. P. 35.3(a)(2).  We also ordered appellant to pay this court=s filing fee in the amount of $125.00.  Our order stated that failure to comply would result in dismissal of the appeal.  See Tex. R. App. P. 37.3(b), 42.3(c). 

Appellant requested and was granted an extension of time to make these payments until November 19, 2007.  The court noted that no further extensions would be granted.

No clerk=s record has been filed.  Appellant has not provided this court with proof of payment for the record.  In addition, our appellate filing fee has not been paid.  Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 29, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

---

^[1]   The appeal from county court to this court is timely.  By order filed July 5, 2007, this court rejected Harris County=s contention that appellant=s October 29, 2006, affidavit of indigency was untimely for purposes of the appeal to this court.  The trial court opined at the most recent hearing that appellant=s appeal from justice court to county court was untimely.  We express no opinion concerning the timeliness of the appeal from justice court to county court.  We have no record from those proceedings and are unable to ascertain the county court=s jurisdiction.  Certainly, if the county court lacked jurisdiction over the case, an appeal to this court would be frivolous.  See Tex. Civ. Prac. & Rem. Code Ann. ' 13.003(a).