Opinion issued June 20, 2002
In The
Court of Appeals
For The
First District of Texas
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NO. 01-98-00517-CV
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ARTHUR JOHNSON, Appellant
V.
MARY JANE PONTZIER, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 91-23037
OPINION DISMISSING APPEAL
FOR WANT OF PROSECUTION This is an appeal from a judgment signed on March 18, 1997. Appellant Arthur Johnson filed a motion for extension of time to file his brief and a request for a copy of the record to prepare his brief. The motion is denied. The appeal is dismissed for want of prosecution.
Background
After this case was tried to the court on January 23, 1997, the trial court found in favor of the defendant/appellee Mary Jane Pontzier. Appellant filed a timely notice of appeal, to which was attached his affidavit of inability to pay costs. (1) The appeal was assigned to this Court and given appellate cause no. 01-97-00814-CV. The clerk's record was received on July 30, 1997, along with a motion for an extension of time to file it. Before that motion was acted upon, the appeal was transferred to the Court of Appeals for the Eighth District of Texas at El Paso on August 14, 1997, and this Court closed its file on the case. See Tex. Gov't Code Ann. § 73.001.
The Court of Appeals for the Eighth District of Texas granted appellant's motion to remand the case back to this Court. On May 11, 1998, this appeal was transferred back to this Court and assigned appellate cause no. 01-98-00517-CV. The Clerk of this Court filed a clerk's record, a supplemental clerk's record, and a reporter's record of an April 25, 1997 postjudgment hearing. However, the reporter's record of the January 23, 1997 trial was not filed.
On May 13, 1998, appellant filed a motion for an extension of time in this Court, seeking an extension of 120 days for medical reasons, which we granted. When no appellant's brief was filed, on October 23, 1998, we issued an order stating that the appeal would be dismissed unless within 15 days, appellant filed his brief and an explanation reasonably explaining why his brief was late. Appellant responded by asking for a 120-day extension of time to file his brief, indicating for the first time that he had requested, but that the court reporter had not filed, the reporter's record of the trial.
On February 15, 2001, this Court ordered the official court reporter to prepare without cost the reporter's record of the trial held on January 23, 1997 in trial court cause no. 91-23037. On February 20, 2001, we received a response from Marijane Stomberg, the official reporter of the 152nd District Court, stating that: (1) she has no record that this reporter's record was ever ordered; and (2) after searching her records, she has no reporter's record of the trial. On June 21, 2001, we abated the appeal and remanded the cause to the trial court for it to make appropriate findings and rule on issues regarding whether a reporter's record was made of the January 23, 1997 trial. We further held:
It is appellant's responsibility to request a hearing date from the trial court and to schedule a hearing in compliance with this Court's order. If we do not receive a record on the abatement or a motion to reinstate within 150 days, we will reinstate the appeal and proceed to consider the appeal based on the clerk's record and briefs alone. Any extensions of time will be disfavored given the age of this appeal.
On February 6, 2002, we reinstated this appeal. Appellant's brief was due March 8, 2002. On March 2, 2002, appellant filed a motion for extension of time to file his brief. As of the date of this opinion, appellant's brief has not been filed.
This is appellant's third motion for extension of time. Due to the age of the this case, our previous orders stated that "any motions for extension of time will be disfavored." Moreover, appellant did not specify any reasons to necessitate an extension of time. He simply stated that his motion was "in the interest of justice and not due to delay."
Conclusion
Appellant's motion for extension of time to file a brief is denied. The appeal is dismissed for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b).
PER CURIAM
Panel consists of Justices Mirabal, Hedges, and Jennings.
Do not publish. Tex. R. App. P. 47.
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