Chinasa Madumere & Envision Medical Supply, Inc. v. Enyimba Social Club USA, Inc. ( 2012 )

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHINASA MADUMERE and ENVISION MEDICAL SUPPLY, INC.,                             Appellants, v. ENYIMBA SOCIAL CLUB USA, INC., Appellee.

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No. 08-12-00226-CV Appeal from the 134th District Court of Dallas County, Texas (TC# DC-11-03985-G)

MEMORANDUM  OPINION

This appeal is before the Court on its own motion to determine whether the appeal should be dismissed.  Although Appellants have timely filed their notice of appeal, they have failed to tender the required filing fee and file the reporter’s record and their brief.

            Unless excused by statute or rule, an appellant must pay the required filing fees when filing a notice of appeal.  See Tex.R.App.P. 5; see also Tex.R.App.P. 20.1(c).  Likewise, unless excused, an appellant must also pay the official reporter for preparing the reporter’s record to ensure the record is filed.  See Tex.R.App.P. 35.3(b)(2), (3).  If an appellant fails to file a brief, pay the filing fee, and pay, or make arrangements to pay the official reporter to prepare the reporter’s record, an appeals court may dismiss the appeal on its own initiative.  See Tex.R.App.P. 37.3(c), 38.8(a)(1), 42.3(b), (c).

On June 15, 2012, Appellants filed their notice of appeal with the Clerk of the Fifth Court of Appeals, but did not tender the required $175 filing fee or submit an affidavit of indigence.  By letter dated July 2, 2012, the Clerk of the Fifth Court of Appeals informed the parties that the appeal had been transferred to this Court by order of the Texas Supreme Court.  By letter dated July 6, 2012, the Clerk of this Court informed Appellants that the requisite filing fee had not been paid, instructed them to pay within 20 days, and advised them that failure to do so could result in dismissal of the appeal.  Appellants did not respond to this letter.  By letter dated August 6, 2012, the Clerk of this Court informed Appellants that they had not filed their brief and the reporter’s record and tendered the required filing fee, and gave them notice of its intent to dismiss the appeal for want of prosecution unless, within 10 days, they could show cause for continuing the appeal.  Appellants did not respond to this letter.

As established above, this Court has the authority to dismiss an appeal if an appellant fails to prosecute the appeal or to comply with the appellate rules or with a notice from the clerk requiring a response or other action within a specified time.  See Tex.R.App.P. 37.3(c), 38.8(a)(1), 42.3(b), (c). Although twice instructed to tender the filing fee and warned that failure to do so could result in dismissal of the appeal, Appellants have failed to tender the filing fee and to respond to the Clerk’s letters.  In addition, Appellants have failed to pay or make arrangements to pay the official reporter to prepare the reporter’s record and none has been filed.  Furthermore, Appellants have failed to file their brief. Accordingly, we dismiss the appeal.

August 29, 2012

                                                                        CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.