James Brett Cummings v. Conner MacHine, Inc.

NO. 07-10-0498-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 9, 2011

______________________________

JAMES BRETT CUMMINGS AND ZURICH AMERICAN INSURANCE COMPANY,

AS SUBROGEE OF BRETT CUMMINGS, APPELLANTS

V.

CONNER MACHINE AND WELDING, INC. D/B/A/ CONNER INDUSTRIES, APPELLEE

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 99,128-E; HONORABLE DOUGLAS WOODBURN, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ORDER OF DISMISSAL AS TO ZURICH AMERICAN INSURANCE COMPANY,

 AS SUBROGEE OF BRETT CUMMINGS

Appellants, James Brett Cummings and Zurich American Insurance Company, as Subrogee of Brett Cummings, both perfected an appeal from the trial court's summary judgment in favor of Appellee, Connor Machine and Welding, Inc. d/b/a Conner Industries resulting from a personal injury case.  The appellate record was filed on January 10, 2011. Zurich American Insurance Company's brief was due to be filed on or before February 9, 2011, but has yet to be filed.  By letter dated February 18, 2011, this Court notified Zurich American Insurance Company of the defect and extended the deadline in which to file the brief to February 28, 2011, noting that failure to do so would subject its appeal to dismissal without further notice.  Counsel for Zurich American Insurance Company did not respond and its brief remains outstanding.

Consequently, we dismiss that portion of this appeal as it pertains to Appellant Zurich American Insurance Company, as Subrogee of Brett Cummings for want of prosecution and failure to comply with a notice from the Clerk of this Court requiring a response or other action in a specified time.  See Tex. R. App. P. 42.3(b) and (c).  That portion of the appeal as it pertains to Appellant James Brett Cummings will proceed in due course.

It is so ordered.

                                                                        Per Curiam