John J. Hindera v. Nelson Dometrius ( 2005 )

NO. 07-02-0112-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 20, 2005

______________________________



JOHN J. HINDERA, APPELLANT

V.

NELSON DOMETRIUS, APPELLEE



_________________________________

FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 99-507,408; HONORABLE SAM MEDINA, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ORDER

Pending before this Court is the second motion to dismiss of appellee Nelson Dometrius. By order dated July 10, 2003, this Court denied appellant John J. Hindera's motion to reinstate this appeal and Dometrius's motion to dismiss citing insufficient documentation that Hindera's stay in bankruptcy had been lifted. Hindera, proceeding pro se, filed a supplemental motion to reinstate the appeal accompanied by an order from the Western District of Texas United States Bankruptcy Court entitled "Discharge of Debtor." However, because no certified copy of an order from the bankruptcy court lifting or terminating the stay was included as required by Rule 8.3(a) of the Texas Rules of Appellate Procedure, Hindera's supplemental motion was denied without prejudice by order dated August 20, 2003.

This appeal remains on the Court's docket and was inactive until December 13, 2004, when Dometrius filed a second motion to dismiss noting Hindera's failure to pursue this appeal for over 15 months. Referring back to Hindera's supplemental motion to reinstate filed on August 4, 2003, he indicated he would most likely be unable to provide this Court with a copy of the bankruptcy court's order lifting the stay without a request and payment of a fee to reopen the bankruptcy case. Given the circumstances and lengthy delay we now apply Rule 2 of the Texas Rules of Appellate Procedure, suspend the operation of Rule 8.3(a), and sua sponte reinstate this appeal. Hindera is notified that failure to take action in this appeal by (10 days) will result in dismissal for want of prosecution. Tex. R. App. P. 42.3(b). A ruling on Dometrius's motion to dismiss remains pending expiration of the ten day deadline.

It is so ordered.

Per Curiam

AN> pursuant to Rules 38.8(a)(1) and 42.3(b) of the Texas Rules of Appellate Procedure. To date this Court has received neither a brief nor another request for extension of time to file Appellant's brief.

Having failed to meet any of the four previous deadlines for the filing of Appellant's brief, the appeal is dismissed.

Per Curiam