David Bryan Ballard v. David S. Wishnew, M.D.

Ballard v. Wishnew

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00163-CV

David Bryan Ballard, Appellant

v.

David S. Wishnew, M.D., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 95-14696, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

PER CURIAM

Appellee David S. Wishnew, M.D., moves this Court to dismiss appellant David Bryan
Ballard's appeal. Ballard sued Wishnew for medical malpractice related to reconstructive surgery.
Following the trial court's summary judgment for Wishnew, Ballard timely filed an affidavit of inability to
pay the costs of appeal. He did not, however, notify Wishnew that he filed the affidavit, as required by
Rule of Appellate Procedure 40(a)(3)(B). See Tex. R. App. P. 40(a)(3)(B).
Ballard cannot proceed on appeal by affidavit of inability to pay without having given the
required notice. Id.; In re V.G., 746 S.W.2d 500, 502 (Tex. App.--Houston [1st Dist.] 1988, no writ);
Bantuelle v. Renfroe, 620 S.W.2d 635, 640 (Tex. Civ. App.--Dallas 1981, no writ). The Clerk of this
Court invited Ballard either to amend his affidavit by filing a bond or depositing cash or to show grounds
for continuing the appeal. See Aguirre v. Texas Dep't of Protective & Regulatory Servs., 917 S.W.2d
462, 464 (Tex. App.--Austin 1996, no writ). To this date, Ballard has done neither.
We therefore grant Wishnew's motion and dismiss the appeal for failure to comply with the
requirements of the Texas Rules of Appellate Procedure. Tex. R. App. P. 60(a)(1).

Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Dismissed on Appellee's Motion
Filed: October 9, 1996
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