John R. Soard v. Terry Thorn, Shelia Smith and Mary Page ( 2015 )

FILE COPY CAUSE NO. 12-14-00211-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JOHN R. SOARD, } APPEALED FROM 3RD APPELLANT V. } DISTRICT COURT IN AND FOR TERRY THORN, SHELIA SMITH AND MARY PAGE, } ANDERSON COUNTY, TEXAS APPELLEES PER CURIAM ORDER On April 9, 2014, Appellant, John R. Soard, filed a notice of appeal in this court by which he sought to appeal the judgment signed on March 20, 2014. The judgment followed the consolidation of Soard’s suit against Appellee Terry Thorn and the suits filed against Appellees, Shelia Smith and Mary Page, respectively. The clerk’s record was filed on August 6, 2014. Soard requested a reporter’s record from two reporters. He did not immediately pay for the record prepared by one of them, and therefore that record was not filed until September 1, 2014. The second reporter notified this court that she would not be filing a record because she did not report any proceeding pertaining to this appeal. Accordingly, on September 1, 2014, Soard was notified that the clerk of this court believed the record to be complete. Thus, Soard’s brief was due on October 2, 2014. See TEX. R. APP. P. 38.6(a). When Soard did not file his brief on October 2, 2014, this court notified him that the brief was past due. Soard was further warned that the appeal could be dismissed unless, on or before October 17, 2014, he filed a motion for extension of time to file the brief. In response, Soard informed the clerk of this court that the appellate record was incomplete. He complained that the clerk’s record was incomplete, but did not identify which documents were missing. He also FILE COPY complained that the second reporter had not filed the record he requested. We addressed this complaint with the reporter, who then filed the requested record on November 24, 2014. Consequently, Soard’s new date for filing his brief was December 29, 2014. See TEX. R. APP. P. 38.6(a). However, Soard did not file his brief on that date. On December 31, 2014, this court notified Soard that his brief was past due and warned that the appeal could be dismissed unless, on or before January 12, 2015, he filed a motion to extend the time for filing his brief. In response, Soard again complained about the documents missing from the clerk’s record and the second reporter’s failure to send him a copy of her portion of the record. The clerk of this court reviewed Soard’s designation of the clerk’s record and concluded that the designation was not sufficiently specific to comply with Texas Rule of Appellate Procedure 34.5(b)(2). Consequently, this court issued an order (1) directing Soard to file a specific designation of the clerk’s record in the trial court, with a copy of the clerk of this court, not later than January 20, 2015; (2) making the supplemental clerk’s record due thirty days after Soard filed his designation; (3) making Soard’s brief due thirty days after the supplemental clerk’s record was filed; and (4) making Soard’s brief due no later than February 19, 2015, if he did not file the designation as ordered. Soard filed another designation of record with the clerk. On February 5, 2015, the clerk requested that Soard clarify his description of several documents. Additionally, the second reporter notified the clerk of this court that Soard had not received a copy of her record because he had not paid the fee for it. Accordingly, on March 6, 2015, Soard was notified that his brief was due on April 6, 2015. When Soard did not file his brief by April 6, the clerk of this court sent a late brief notice and warned that the appeal could be dismissed unless, on or before April 20, 2015, he filed a motion to extend the time for filing his brief. Following additional complaints by Soard, the trial court clerk informed the clerk of this court that no supplemental clerk’s record had been filed because Soard had not paid the fee for its preparation. On May 14, 2015, Soard checked out the appellate record from this court, and on June 2, 2015, the clerk filed the supplemental record Soard had requested. On June 4, 2015, Appellee Terry Thorn filed a motion to dismiss this appeal for want of prosecution. As grounds for dismissal, Thorn cites Soard’s failure to comply with this court’s notices directing him to file a motion for extension of time to file his brief, the number of extensions he has received, and his continuing failure to file his brief. In response, Soard asserts that the appellate record was not complete until he received the supplemental clerk’s record on June 9, 2015, and that he now has thirty days from that date to file his brief. FILE COPY After reviewing the status of this appeal, Thorn’s motion to dismiss, and Soard’s response, IT IS HEREBY ORDERED that Soard’s time for filing his brief is hereby extended to July 9, 2015. No further extensions will be granted. To be considered timely filed, Soard’s brief must be received by the clerk of this court ON OR BEFORE 5:00 P.M. ON JULY 9, 2015. IT IS FURTHER ORDERED that consideration of Thorn’s motion to dismiss is passed at this time, but the motion will be ruled on promptly after July 9, 2015. WITNESS the Honorable James T. Worthen, Chief Justice of the Court of Appeals, 12th Court of Appeals District of Texas, at Tyler. GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at my office this the 26th day of June 2015, A.D. CATHY S. LUSK, CLERK 12TH COURT OF APPEALS By: ________________________________ Katrina McClenny, Chief Deputy Clerk