Herbert C. Ausbie v. Salvation Army, Inc. ( 2020 )

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00240-CV ___________________________ HERBERT C. AUSBIE, Appellant V. SALVATION ARMY, INC., Appellee On Appeal from the 96th District Court Tarrant County, Texas Trial Court No. 096-305690-19 Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION On September 18, 2019, we notified appellant Herbert C. Ausbie that the brief he filed on September 16, 2019, was deficient, specifically listing the ways in which the brief did not comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 9.4(i), 9.5(e), 38.1(a)–(d), (f)–(i), (k). We directed Ausbie to file an amended brief complying with the appellate rules no later than September 30, 2019, and warned him that the failure to do so could result in our striking his noncompliant brief and dismissing the appeal. See Tex. R. App. P. 9, 38.8(a), 38.9(a), 42.3; 2nd Tex. App. (Fort Worth) Loc. R. 1. On September 25, 2019, Ausbie tendered a noncompliant motion to extend time to file an amended brief. The following day, we notified Ausbie that his motion was noncompliant, specifically listing the motion’s deficiencies. See Tex. R. App. P. 9.1(b), 9.5(d), 10.1(a)(5). We directed him to file an amended motion by October 7, 2019, and warned that failure to do so could result in our denying the motion. Despite our warnings, Ausbie did not amend his brief or his motion to extend time. On November 5, 2019, we notified him of these failures and directed him to file a rule-compliant amended brief and a rule-compliant amended motion to extend time that reasonably explained his failure to timely file an amended brief and why he needed an extension. See Tex. R. App. P. 10.5(b), 38.8(a)(1), 38.9(a). We informed him that if he failed to do so by November 25, 2019, we could strike his noncompliant 2 brief and dismiss this appeal for want of prosecution See Tex. R. App. P. 10.5(b), 38.8(a)(1), 38.9(a), 42.3(b). Ausbie again failed to do either. We deny Ausbie’s noncompliant motion to extend time. And because he has failed to file an amended brief despite being given the opportunity to do so, we strike his brief and dismiss this appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 38.9(a), 42.3(b), 43.2(f). /s/ Elizabeth Kerr Elizabeth Kerr Justice Delivered: January 30, 2020 3