Opinion
No. 06-11-00043-CV
03-07-2012
BUDDY KINDLE, Appellant v. UNITED SERVICES AUTOMOBILE ASSOCIATION, ET AL., Appellees
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 2006-360
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Buddy Kindle has filed two separate appeals with this Court, one on the merits—this appeal—attacking a summary judgment taken against him, and another attacking the trial court's determination that he was not indigent and was, thus, not entitled to have a free record provided. After obtaining a record of the indigence hearing in the other appeal, we affirmed the trial court's determination on indigence December 21, 2011. On February 6 (the last day on which a petition could be timely filed), Kindle sought an extension of time from the Texas Supreme Court in the indigence matter—which was granted to March 22, 2012. That appeal continues.
The opinion is in our cause number 06-11-00130-CV.
In the present case (the appeal on the merits), we contacted Kindle by letter December 22, 2011, informing him that the clerk's and reporter's records were due on or before January 23, 2012, and warning him that, if he did not provide this Court with a record or with an adequate response or explanation why the record was not filed, his appeal on the merits would be subject to dismissal for want of prosecution. See TEX. R. APP. P. 42.3(b), (c).
Kindle did not file a record and did not contact this Court. On February 7, 2012, we dismissed the appeal for want of prosecution. Fourteen days later, on February 21, Kindle has now filed a motion to reinstate.
At this point, we note the multiple delays that have occurred during the appellate process in this case. Kindle sought three extensions of time to file his brief on the indigence matter. In response to his final request, we informed him that we would consider no further requests for extension and that the appeal would be subject to dismissal for want of prosecution if the brief was not filed. Instead of filing a brief, Kindle provided this Court with yet another request for more time and a "fill in the blank" draft of a brief containing the sketch of an argument, which he claimed showed his diligent efforts to prepare his brief. We chose not to dismiss, but instead filed that document as his brief. United Services Automobile Association (USAA) thereafter filed a reply brief, and we issued an opinion disposing of the indigence appeal.
We also recognize that Kindle filed his petition in 2006. The case is now over five years old.
In the indigence proceeding, Kindle's brief was originally due August 31, 2011. His brief was filed November 5, 2011, and USAA's reply brief was filed November 28, 2011.
The blanks were not filled in.
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After the release of that opinion, and despite being informed that his appeal on the merits was continuing, Kindle disregarded our warning that his appeal would be dismissed in the absence of a record or an adequate explanation of its absence. He neither filed a record nor contacted this Court in any fashion during that time.
Now, on the fourteenth day after our opinion issued, one day before the final day on which a motion for rehearing could be timely filed, Kindle has for the first time since our warning letter of December 22, 2011, contacted this Court in the form of his motion to reinstate.
Kindle has exhibited a pattern of delays in this case and in his appeal on indigence. Kindle has chosen not to pursue his case with any attempt to reach a resolution, but instead has acted in a fashion evidently designed to prevent its resolution. Kindle has failed to effectively prosecute his appeal, and in the absence of a record, we have no jurisdiction over the appeal.
We dismiss the appeal.
Josh R. Morriss, III
Chief Justice