Betty Ann Newby v. Tisdale Siding, Inc. ( 2002 )

NO. 07-02-0052-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 28, 2002

______________________________

BETTY ANN NEWBY,

Appellant

v.

TISDALE SIDING, INC.

Appellee

_________________________________

FROM THE COUNTY COURT OF HUTCHINSON COUNTY;

NO. 5681; HON. JACK WORSHAM, JUDGE _______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

Appellant Betty Ann Newby, proceeding pro se, filed a notice of appeal from the trial court's judgment dated October 7, 2001. Both the clerk's record and reporter's record have been filed. Appellant's brief was originally due March 4, 2002, which date came and went without a brief or extension being filed. The Court notified appellant on March 14, 2002,

that the brief was past due and that failure to reasonably explain the reasons therefor could result in dismissal. On March 15, 2002, a motion for extension of time to file the brief was filed and appellant was granted an extension until March 29, 2002. So too was she admonished that no further extensions would be granted without extreme and unusual circumstances. The March 29, 2002 deadline passed without appellant filing either a brief or a further motion to extend the deadline. The Court then dismissed the cause for want of prosecution on April 4, 2002. This resulted in the appellant filing a motion for rehearing wherein Newby contended that she was denied notice of the court's intent to dismiss if the brief was not filed. Concluding that such notice was not afforded her, the Court granted the motion for rehearing and reinstated the cause. However, it ordered appellant to file her brief no later than ten days from the order dated May 9, 2002 and notified her that the failure to comply would result in dismissal of the cause. Ten days passed without appellant filing either a brief or a further motion to extend the deadline.

Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1) and 42.3(b) and (c).

Per Curiam

Do not publish.

ated into the record.

2. Counsel for relator shall promptly file with the Clerk of this Court the reporter's record as soon as it is completed and a certified copy of any order signed by the trial court containing its rulings upon real party's Motion to Show Cause and for Contempt, and in the Alternative, for Sanctions.

3. Counsel for real party is requested to file a response to the petition for writ of mandamus on or before July 29, 2002.

4. Except as expressly provided above, nothing herein shall operate to stay any other pretrial orders or discovery matters, or such action as the parties may agree pending hearing on the petition for writ of mandamus.

IT IS SO ORDERED.

Per Curiam

Do not publish.