Opinion
No. 10-03-017-CV.
Opinion delivered and filed June 4, 2003.
Appeal from the 128th District Court, Orange County, Texas, Trial Court #A-980444-AC.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
MEMORANDUM OPINION
Shelby Hodges filed suit against Performance Contracting, Inc for personal injuries he allegedly sustained while on the job. Workers compensation carrier Liberty Mutual Insurance Company intervened. Hodges filed a cross-claim against Liberty Mutual and joined his employers Raytheon-Ebasco Overseas, Ltd. and Raytheon Constructors, Inc. (collectively, "Raytheon") as defendants.
Throughout the course of the litigation, the court entered orders: (1) granting Performance Contracting's motion to deposit $500,000 into the court's registry and be discharged from any further liability pursuant to a settlement agreement between Hodges and Performance Contracting; (2) granting Hodges's motion for sanctions against Liberty Mutual by striking Liberty Mutual's pleadings; (3) granting Hodges's motion to sever Liberty Mutual's and his claims against Performance Contracting from the remainder of the claims in the suit; and (4) granting Hodges's motion to withdraw $235,758.67 from the court's registry. After the severance, Liberty Mutual and Raytheon perfected this appeal, stating their intention to seek appellate review of each of these orders.
The clerk's record was filed in this Court on December 31, 2002. No reporter's record was filed because Liberty Mutual and Raytheon failed to request preparation of the record. See Tex.R.App.P. 37.3(c)(2). After giving Liberty Mutual and Raytheon opportunity to request preparation of the record (which they failed to do), the Clerk of this Court notified Liberty Mutual and Raytheon by letter dated March 26, 2003 that an appellant's brief, "presenting issues determinable from the clerk's record alone," was due thirty days thereafter (April 25). Id. To date, no appellant's brief has been filed.
Appellate Rule 38.8(a)(1) provides that if an appellant fails to timely file a brief, the Court may:
dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant's failure to timely file a brief.
Id. 38.8(a)(1).
The Clerk of this Court sent the following notice to Liberty Mutual and Raytheon on May 8, 2003:
Pursuant to Rules 38.8(a)(1) and 42.3 of the Texas Rules of Appellate Procedure, you are notified that the Court may dismiss this appeal for want of prosecution unless, within ten days of this letter, the appellant or any party desiring to continue the appeal files with this court a response showing grounds for continuing the appeal.
Id. 38.8(a)(1), 42.3. The Court has received no response. Id. 42.3, 38.8(a)(1). Therefore, this appeal is dismissed for want of prosecution. Id. 38.8(a)(1).
Dismissed for want of prosecution.