Brian A. Smale v. Glen Thurman, A/K/A Glen Thurman Builder, Inc., A/K/A Rose Hill Springs Development, LLC and Wood County Commissioner's Court

NO. 12-19-00386-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRIAN A. SMALE, § APPEAL FROM THE 402ND
APPELLANT
V.
GLEN THURMAN, A/K/A GLEN § JUDICIAL DISTRICT COURT
THURMAN BUILDER, INC., A/K/A
ROSE HILL SPRINGS
DEVELOPMENT, LLC AND WOOD
COUNTY COMMISSIONER'S COURT,
APPELLEES § WOOD COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for want of prosecution. See TEX. R. APP. P. 42.3(b) (on
any party’s motion, or on its own initiative after giving ten days’ notice, appellate court may
dismiss appeal if appeal is subject to dismissal for want of prosecution).
Brian Smale, acting pro se, perfected his appeal on November 19, 2019. On January 29,
2020, this Court notified Smale that the clerk’s record was due on January 28 and the Wood County
District Clerk requested an extension of time to file the record, citing non-payment of the required
preparation fee. The notice further stated that the appeal would be presented to this Court for
dismissal unless proof of full payment to the clerk was provided to this Court no later than February
10. Smale filed a motion to abate requesting that this Court order the trial court to file findings of
fact and conclusions of law and to order the District Clerk to identify the contents of the clerk’s
record through a line item description. In a letter, Smale asked that this Court rule on the motion
to abate before considering dismissal. This Court overruled the motion to abate on February 20.
On March 4, the district clerk filed a motion for extension of time, explaining that no
payment had been received. On March 11, this Court notified Smale that the clerk’s record was
due on January 28 and the District Clerk requested an extension of time to file the record, citing
non-payment of the required preparation fee. The notice further stated that the appeal would be
presented to this Court for dismissal unless proof of full payment to the clerk was provided to this
Court no later than March 23. Smale did not respond to this Court’s notice and, on March 27, the
District Clerk informed the Clerk of this Court that payment arrangements still had not been made.
When the trial court clerk fails to file the clerk’s record because the appellant failed to pay
or make arrangements to pay the clerk’s fee for preparing the clerk’s record, the appellate court
may dismiss the appeal for want of prosecution unless the appellant was entitled to proceed without
payment of costs. TEX. R. APP. P. 37.3(b). The court must give the appellant a reasonable
opportunity to cure before dismissal. Id. Pro se litigants are held to the same standards as licensed
attorneys and must comply with all applicable rules of procedure; otherwise, pro se litigants would
benefit from an unfair advantage over parties represented by counsel. Muhammed v. Plains
Pipeline, L.P., No. 12-16-00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.—Tyler June 21,
2017, no pet.) (mem. op.).
Smale has not established indigence, paid, or made arrangements to pay, the fee for
preparation of the clerk’s record. See TEX. R. APP. P. 20.1, 35.3(a)(2), 37.3(b). Nor has he
otherwise responded to this Court’s March 11 notice. Accordingly, having provided Smale with a
reasonable opportunity to cure, we dismiss the appeal for want of prosecution. See TEX. R. APP.
P. 38.8(a)(1), 42.3(c). All pending motions are overruled as moot.
Opinion delivered March 31, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 31, 2020
NO. 12-19-00386-CV
BRIAN A. SMALE,
Appellant
V.
GLEN THURMAN, A/K/A GLEN THURMAN BUILDER, INC.,
A/K/A ROSE HILL SPRINGS DEVELOPMENT, LLC AND
WOOD COUNTY COMMISSIONER'S COURT,
Appellees
Appeal from the 402nd District Court
of Wood County, Texas (Tr.Ct.No. 2019-483A)
THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed for want of
prosecution.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
the appeal be, and the same is, hereby dismissed for want of prosecution; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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