Richard Kirby v. Benny Fletcher

NO. 12-23-00279-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RICHARD KIRBY, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
BENNY FLETCHER,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for failure to comply with the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 42.3(c).
Richard Kirby filed a pro se notice of appeal on October 27, 2023. On November 1, the
Clerk of this Court notified Appellant that the notice of appeal failed to contain the information
specifically required by Section 51.017(a) of the Texas Civil Practice and Remedies Code. 1 See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.017(a) (West Supp. 2019) (notice of appeal must be
served on each court reporter responsible for preparing reporter’s record). The notice warned
that, unless Appellant filed a proper notice of appeal on or before December 1, the appeal would
be referred to the Court for dismissal. This deadline passed and Appellant has not filed a
compliant notice of appeal or other response to this Court’s notice.
Because Appellant failed, after notice, to comply with Section 51.017(a), the appeal is
dismissed. See TEX. R. APP. P. 42.3(c) (on its own initiative after giving ten days’ notice to all
parties, appellate court may dismiss appeal if appeal is subject to dismissal because appellant
1 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.).
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failed to comply with a requirement of these rules, a court order, or a notice from the clerk
requiring a response or other action within a specified time).
Opinion delivered December 14, 2023.
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
DECEMBER 14, 2023
NO. 12-23-00279-CV
RICHARD KIRBY,
Appellant
V.
BENNY FLETCHER,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 21-1098-C)
THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed; 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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