Summary
dismissing an appeal when the appellant filed a deficient brief and failed to file a sufficient motion for extension of time to file an amended brief
Summary of this case from Guerrero v. KarkoutlyOpinion
NO. 14–15–00021–CV
10-27-2015
In the Matter of the Marriage of Clinton Bowers and Barbara Bowers
Clinton Bowers, Pearland, TX, for appellant. Barbara Bowers, Carolyn L. McElroy, Houston, TX, for appellee.
Clinton Bowers, Pearland, TX, for appellant.
Barbara Bowers, Carolyn L. McElroy, Houston, TX, for appellee.
Panel consists of Justices Jamison, McCally, and Wise.
OPINION
Ken Wise, Justice
This is an appeal from a judgment signed December 12, 2014. The clerk's record was filed February 9, 2015. The reporter's record was filed February 10, 2015. Appellant filed a brief that failed to substantially comply with Rule 38 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1(a), (c), (f), and (i). On September 1, 2015, appellant was ordered to file an amended brief within thirty days or the appeal would be dismissed for want of prosecution. See Tex. R. App. P. 38.9 and 42.3(b).
On September 29, 2015, appellant filed a motion for extension of time to file his amended brief. The motion fails to state the length of the extension sought or any facts relied upon to explain the need for an extension. See Tex. R. App. P. 10.5(b)(1)(B) and (C). Accordingly, appellant's motion is denied and the appeal is ordered dismissed.
(McCally, J., dissenting)
Sharon McCally, Justice, dissenting.
The majority denies the motion of appellant Clinton Bowers for an extension of time to file a corrected brief—his first. The majority then dismisses Clinton Bowers's appeal for want of prosecution. I disagree that this appeal should be dismissed for want of prosecution. Because the majority does so, I respectfully dissent.
Clinton Bowers, proceeding pro se, timely filed his appellant's brief on May 19, 2015. On September 1, 2015, this Court ordered Clinton Bowers to rebrief within thirty days because his brief failed to substantially comply with Rule 38 of the Texas Rules of Appellate Procedure. Prior to the expiration of that time period, Clinton Bowers filed the instant motion for extension of time to file that corrected brief Barbara Bowers did not respond to the motion. Barbara Bowers has not moved to dismiss the appeal.
I agree that Clinton Bowers's motion for extension of time to rebrief his appeal is technically defective for its failure to state either the reason for the extension or the length of extension sought. However, I do not agree that the lack of specificity in Clinton Bowers's motion is sufficiently severe to dismiss his appeal for want of prosecution—effectively, a death penalty sanction.
Clinton Bowers has demonstrated his intent to prosecute this case. Clinton Bowers articulated twenty-one issues on appeal of the trial court's property division order in his original brief—albeit without citation to the record or the law. Clinton Bowers secured a clerk's record and at least a partial reporter's record from several days of testimony. Clinton Bowers did not ignore this Court's order to rebrief. Clinton Bowers did not file an additional noncompliant brief. Clinton Bowers simply asked for more time.
Instead of dismissing this cause for want of prosecution, I would order Clinton Bowers to file the corrected, compliant brief by a date certain. Because the majority does not, I respectfully dissent.