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

NO. 12-14-00211-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOHN R. SOARD, § APPEAL FROM THE 3RD
APPELLANT
V.
§ JUDICIAL DISTRICT COURT
TERRY THORN, SHELIA SMITH AND
MARY PAGE,
APPELLEES § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Appellee Terry Thorn has filed a motion to dismiss this appeal in its entirety for want of
prosecution. We grant Thorn’s motion and dismiss the appeal for want of prosecution.
TRIAL COURT PROCEEDINGS
Soard sued Thorn and Appellees Sheila Smith and Mary Page in separate lawsuits.
Thorn represented Soard for a time in the divorce action filed by Mary Soard, now Mary Page.
Sheila Smith was Page’s attorney in the divorce action. Soard’s complaints against all three
appellees pertain to their alleged misconduct during the pendency of the divorce action.
Thorn filed a motion to consolidate Soard’s suit against him with the lawsuits against
Smith and Page, which were pending in the same county. Soard filed written objections to
Thorn’s motion, but the trial court granted the motion and consolidated the three suits. Each
appellee filed a motion for summary judgment, and the trial court granted all three motions.
THE APPEAL
On April 9, 2014, Soard filed a notice of appeal in this court by which he sought to
appeal the trial court’s judgment signed on March 20, 2014, granting Appellees’ respective
motions for summary judgment.
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
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 also informed the court that the second reporter had failed 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 to 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
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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. On February 5, 2015, the trial court 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 Soard 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.
After reviewing the status of this appeal, Thorn’s motion to dismiss, and Soard’s
response, this court extended Soard’s time for filing his brief to July 9, 2015, and warned him
that no further extensions would be granted. We informed Soard that, to be considered timely
filed, the brief must be received by the clerk of this court on or before 5:00 p.m. on July 9, 2015.
Additionally, we passed consideration of Thorn’s motion, stating that the court would rule on the
motion promptly after July 9, 2015. Soard’s deadline for filing his brief has now passed, and he
has not filed a brief.
We agree that the appeal should be dismissed based upon Soard’s failure to prosecute the
appeal. Consequently, we grant Thorn’s motion and dismiss the appeal for want of prosecution.
See TEX. R. APP. P. 38.8(a)(1); A True Lucky Brand Oil & Gas Co., LLC v. Hagenbuch Ranch,
LLC, No. 11-12-00340-CV, 2013 WL 1384437, at *1 (Tex. App.–Eastland Apr. 4, 2013, no pet.)
(mem. op.) (per curiam) (dismissing for want of prosecution on motion of one appellee); Higgins
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v. Matagorda Cnty., No. 13-09-00431-CV, 2010 WL 467536, at *1 (Tex. App.–Corpus Christi
Feb. 11, 2010, no pet.) (mem. op.) (per curiam) (same).
Opinion delivered July 15, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 15, 2015
NO. 12-14-00211-CV
JOHN R. SOARD,
Appellant
V.
TERRY THORN, SHELIA SMITH AND MARY PAGE,
Appellees
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3-42003)
THIS CAUSE came on to be heard on the motion of Appellee TERRY
THORN to dismiss the appeal herein, and the same being considered, it is hereby ORDERED,
ADJUDGED and DECREED by this Court that the motion to dismiss be granted and the appeal
be dismissed for want of prosecution, and that the decision be certified to the court below for
observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.