Summary
dismissing an appeal for failure to comply with a court order
Summary of this case from In re M.A.Opinion
No. 04-05-00106-CV
Delivered and Filed: June 1, 2005.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 95-CI-08425, Honorable Pat Priest, Judge Presiding.
Dismissed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Appellee Sheldon Gross, M.D., has filed a motion to dismiss this appeal for want of prosecution. Appellants Timothy and Nancy Kahanek, individually and as personal representatives of the estate of their minor child, Kyndil Kahanek, filed their notice of appeal with the trial court clerk on November 7, 2002, seeking to appeal the summary judgment rendered on August 9, 2002, in favor of Dr. Gross. The Kahaneks, however, never filed a copy of the notice of appeal with this court. Thus, it was not until Dr. Gross filed his motion to dismiss for want of prosecution that we had notice of the pending appeal.
As emphasized by Dr. Gross, the Kahaneks did not file a copy of the notice of appeal with this court as required by the Texas Rules of Appellate Procedure. See Tex.R.App.P. 25.1(e); Kennedy v. Brysch, No. 04-04-00039-CV, 2004 WL 1510623, at *1 (Tex.App.-San Antonio July 7, 2004, pet. denied). Nor did the Kahaneks file a docketing statement as required by the rules. See Tex.R.App.P. 32.1; Kennedy, 2004 WL 1510623, at *1. No clerk's or reporter's record has been filed. Indeed, since they filed their notice of appeal with the trial court clerk in November 2002, more than two years ago, the Kahaneks have taken no action in prosecuting this appeal. We, therefore, ordered the Kahaneks to file a response to Dr. Gross's motion to dismiss for want of prosecution. They have filed no such response. As such, they have failed to comply with a court order. See Tex.R.App.P. 42.3(c) (allowing involuntary dismissal of appeal for failure to comply with a court order).We, therefore, grant Dr. Gross's motion to dismiss and dismiss this appeal. See Tex.R.App.P. 42.3(b), (c).
On March 30, 2005, we ordered the Kahaneks to file a response to Dr. Gross's motion to dismiss by April 11, 2005. We also ordered the clerk of this court to mail a copy of the order to all attorneys of record and to the last known addresses of Timothy Kahanek and Nancy Kahanek. The letters addressed to Timothy Kahanek's and Nancy Kahanek's last known addresses were returned. However, on April 14, 2005, their attorney of record, Valorie W. Davenport filed a motion for extension of time to file a response. We granted the motion and ordered the Kahaneks to file a response by April 25, 2005. No such response was filed.