Opinion
11-23-00083-CV
11-02-2023
DEVON ENERGY PRODUCTION COMPANY, L.P., Appellants v. MCCLURE OIL COMPANY, INC. AND FINA 945 L.C., Appellees AND DRIVER PRODUCTION, L.P., ET AL., Appellants v. DEVON ENERGY PRODUCTION COMPANY, L.P., ET AL.,Appellees
On Appeal from the 118th District Court Glasscock County, Texas Trial Court Cause No. 1895
Panel consists of: Bailey, C.J., Trotter, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.
MEMORANDUM OPINION
PER CURIAM
Appellees SH Permian Minerals, LLC, and Pioneer Natural Resources USA, Inc. have filed in this court a joint motion for partial dismissal of this appeal and for an extension of time to file their responsive briefs. In its capacity as an appellee, Appellee Devon Energy Production Company, L.P. has joined in the motion. In the motion, Appellees state that Appellant Thelma Kloesel (Thelma) has failed to prosecute this appeal in a timely manner.
In support, Appellees state that Thelma's brief was due to be filed on August 25, 2023, and that, notwithstanding numerous reminders of the deadline from this court, Thelma has not filed a brief, a motion to extend the deadline to file her brief, or a request for leave to file a late brief. Appellees further state that, "if required to file a 'responsive brief' without [an] 'opening' brief from [Thelma]," they would be injured by incurring unnecessary attorney's fees and "by being required to file a brief attempting to anticipate and respond to issues that have not been raised in any brief by [Thelma] and which do not exist." Appellees request leave to postpone the filing date of their respective briefs "until 30 days after the date Thelma . . . files an initial brief, if ever." In this regard, Appellee Pioneer states that Thelma is the "only Appellant with claims remaining against Pioneer-and does not intend to file a brief at all in this appeal if [her] appeal is dismissed."
On August 15, 2023, counsel for Thelma filed a motion to withdraw, stating that "good cause exists [to withdraw] . . . because Movant is unable to effectively communicate with [Thelma] in a manner consistent with good attorney-client relations." We granted the motion, stating that Thelma would be carried as pro se and advising that her brief remained due for filing on or before August 25, 2023. This court has reminded Thelma of the deadline to file her brief four times since her attorney withdrew. Appellees state that, by letter, Appellees' counsel also informed Thelma of the deadline to file her brief and that, "[i]n a telephone conference on
October 16, 2023, [Thelma] stated to counsel that she objected to her appeal being dismissed, but she gave no indication that she intended to hire counsel or file a brief."
Appellees move to involuntarily dismiss Thelma's portion of the appeal for want of prosecution. Thelma has not filed a response to the motion or to Devon's joinder in the motion. The remaining parties have not filed a response in this court that would indicate that they are opposed to Appellees' motion for partial dismissal. As of this date, Appellant Thelma has not filed a brief, nor has she requested another extension of time in which to file her brief. Based upon her failure to prosecute this appeal in a timely manner, we are of the opinion that the motion for partial dismissal should be granted and that Thelma's appeal should be dismissed. See Tex. R. App. P. 38.8(a)(1), 42.3(a), (c). We previously granted Appellees' motion to extend the deadlines to file their respective briefs to November 27, 2023. Appellees' respective briefs, if any, remain due for filing on or before November 27.
Accordingly, we grant Appellees' motion to dismiss Thelma Kloesel's appeal, and we dismiss this appeal in part. The portion of the appeal relating to Thelma Kloesel is dismissed. The appeal remains active with respect to the remaining parties.
Williams, J., not participating.