Elma Thomas v. Peters Colony

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-15-00154-CV

ELMA THOMAS APPELLANT

V.

PETERS COLONY APPELLEE

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FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NO. CV-2015-00793

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MEMORANDUM OPINION 1

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On May 4, 2015, appellant Elma Thomas filed a pro se notice of appeal

from the trial court’s judgment granting appellee Peters Colony possession of an

apartment occupied by Thomas. Thomas’s brief was originally due on August 6,

2015. The due date was extended until September 8, 2015 because this court

construed Thomas’s response to Peters Colony’s first motion to dismiss––which

1 See Tex. R. App. P. 47.4. the court denied––as a motion to extend time to file her brief. Thomas

subsequently filed two other motions to extend; the court granted the second

motion but denied the third motion. In the order denying the third motion, the

court warned Thomas that if she did not file her appellant’s brief by October 12,

2015, her appeal could be dismissed for want of prosecution.

Instead of filing her brief, Thomas filed a fourth motion for extension, which

the court granted until October 28, 2015. Thomas filed a brief on October 20,

2015; however, the clerk of the court informed her by letter that the brief did not

comply with the rules of appellate procedure and gave Thomas until November 2,

2015 to file a corrected brief in compliance with the listed rules of appellate

procedure. See Tex. R. App. P. 9.4(i), 9.5, 38.1(a)–(d), (g)–(i). The letter

included a warning that the consequences of her failure to timely file a corrected

brief could include the following: the striking of her noncompliant brief, the waiver

of any noncomplying points, or dismissal of the appeal. See Tex. R. App. P.

38.8(a), 38.9(a), 42.3. Thomas then filed two motions to extend the time to file a

corrected brief, and the court granted both of them, extending the due date until

November 23, 2015.

On November 20, 2015, Peters Colony filed a motion to dismiss the appeal

for want of prosecution, which has not yet been ruled on. On November 23,

2015, Thomas filed a third motion to extend the time to file a corrected brief. The

court granted the third motion, giving her until December 7, 2015 to file a

2 corrected brief. Instead of doing so, Thomas filed a fourth motion to extend the

time to file a corrected brief.

After considering the history of filings in this case, the multiple

opportunities the court has given Thomas to comply, the arguments in Peters

Colony’s motion to dismiss, and the arguments in Thomas’s fourth motion to

extend, we (1) deny the motion to further extend the time to file a corrected brief,

(2) strike Thomas’s deficient brief filed on October 20, 2015, and (3) grant Peters

Colony’s motion to dismiss. See Tex. R. App. P. 38.8(a)(1), 38.9. Accordingly,

we dismiss this appeal for want of prosecution. See Tex. R. App. P. 42.3(b).

PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: January 14, 2016

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