Joe L. Phillips and the Limestone County Nineteenth of June Organization v. William "Pete" Kirven, Sharon Kirven, Dorothy Touchstone,Billy Touchstone, Jacqueline Gee, Winford Gee, and Madeline Gamble in the Right of the Limestone County Nineteenth of June Organization ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00013-CV
JOE L. PHILLIPS AND THE LIMESTONE COUNTY NINETEENTH OF
JUNE ORGANIZATION,
Appellants
v.
WILLIAM "PETE" KIRVEN, SHARON KIRVEN, DOROTHY
TOUCHSTONE,BILLY TOUCHSTONE, JACQUELINE GEE, WINFORD
GEE, AND MADELINE GAMBLE IN THE RIGHT OF THE
LIMESTONE COUNTY NINETEENTH OF JUNE ORGANIZATION,
Appellees
From the 77th District Court
Limestone County, Texas
Trial Court No. 30,727-A
MEMORANDUM OPINION
Appellants, Joe L. Phillips and The Limestone County Nineteenth of June
Organization, appeal from an adverse judgment signed by the trial court on October 17,
2016. According to the docketing statement, appellants filed a motion for new trial on
November 16, 2016. See TEX. R. CIV. P. 329b(a) (providing that a motion for new trial must
be filed within thirty days after the judgment or other order complained of is signed).
Thereafter, on January 17, 2017, appellants filed their notice of appeal in this matter. See
TEX. R. APP. P. 26.1(a) (stating that a notice of appeal must be filed within ninety days
after the judgment is signed if any party timely files, among other things, a motion for
new trial). And pursuant to Texas Rule of Appellate Procedure 35.1(a), the Clerk’s Record
was due on February 14, 2017. See id. at R. 35.1(a) (stating that the appellate record must
be filed within 120 days after the judgment is signed, if Rule 26.1(a) applies).
On February 17, 2017, the Limestone County District Clerk notified the parties and
this Court that “the Clerk’s Record in the above referenced cause has been prepared.
However, the record has not been filed with your court, as payment for the record has
not been received.” Thereafter, on February 21, 2017, the Clerk of this Court notified
appellants that the Clerk’s Record has not been filed in this Court because appellant “has
failed to pay or make arrangements to pay the clerk’s fee for preparation of the record.”
The Clerk further noted that appellant must pay or make arrangements to pay the clerk’s
fees within twenty-one days of February 21, 2017, or else “this appeal may be dismissed
for want of prosecution.” Appellants have not responded to our February 21, 2017 letter.
Texas Rule of Appellate Procedure 37.3(b) provides that if an appellant fails to pay
or make arrangements to pay the clerk’s fee for preparation of the record, the Court may
“dismiss the appeal for want of prosecution unless the appellant was entitled to proceed
without payment of costs. The court must give the appellant a reasonable opportunity
Phillips, et al. v. Kirven, et al. Page 2
to cure before dismissal.” TEX. R. APP. P. 37.3(b). To date, the record does not reflect that
appellants have paid or made arrangements to pay for the Clerk’s Record or that
appellants are entitled to proceed without payment of costs. Therefore, pursuant to Rule
37.3(b), we hereby dismiss this appeal for want of prosecution. See id.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Opinion delivered and filed April 19, 2017
[CV06]
Phillips, et al. v. Kirven, et al. Page 3