Opinion
01-23-00680-CV
06-18-2024
Helen Tyne Mayfield v. Richard Worthen
Trial court: 157th District Court of Harris County Trial court case number: 2019-70163
ORDER
Veronica Rivas-Molloy, Judge.
Appellant Helen Tyne Mayfield, proceeding pro se, filed a restricted Notice of Appeal from the trial court's February 14, 2023 order granting Appellee Richard Worthen's motion for summary judgment. Appellant alleged she had only learned of the challenged order on August 14, 2023, and that Appellee's motion was granted "without notice of hearing, service or notice by the clerk of the granting of the motion." Appellant filed her brief on March 27, 2024.
Appellee Richard Worthen's brief was originally due April 26, 2024. Appellee did not file a brief by the stated deadline. On May 7, 2024, the Clerk of this Court notified Appellee that his appellate brief was past due. On May 15, 2024, Appellee filed a Notice to the Court and Motion for Extension of Time to File Appellee's Brief, requesting until July 15, 2024 to file his brief, on basis that Appellee "has not been served with Appellant's brief." The Clerk of the Court granted Appellee's Motion, "with no further extensions."
Subsequently, Appellee filed an Amended Notice to the Court and, Alternatively, Motion for Extension of Time to File Appellee's Brief, now arguing that he should not "be obligated to take any action" because Appellant has not complied with service requirement pursuant to Texas Rule of Appellate Procedure 9.5. See Tex. R. App. P. 9.5. Appellee further argues that Appellant has failed to "obtain[] a writ of scire facie, effect[] proper service, and perfect[] the present appeal, pursuant to Texas Rule of Civil Procedure 152, which suspends proceedings to allow substitution of proper party for a deceased defendant. See Tex. R. Civ. P 152 ("Where the defendant shall die, upon the suggestion of death being entered of record in open court, or upon petition of the plaintiff, the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator or executor or heir."). In the alternative, Appellee requested the same extension in which to file his brief, as in his previous motion, July 15, 2024.
Because Appellee's motion for extension of time to file brief has already been granted, we deny his amended motion for extension as moot. Appellee's deadline to file his brief remains July 15, 2024.
It is so ORDERED.