Donald Kilpatrick, Individually and as Representative of the Estate of Donald Lee Kilpatrick and Kelly Lee Kilpatrick v. Timothy S. Kilpatrick, Berry Plastics Corporation A/K/A Berry Sterling Corporation and BPC Holding Corporation

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-132-CV

DONALD KILPATRICK, INDIVIDUALLY APPELLANTS

AND AS REPRESENTATIVE OF

THE ESTATE OF DONALD LEE

KILPATRICK, DECEASED, AND

KELLY LEE KILPATRICK

V.

TIMOTHY S. KILPATRICK, BERRY APPELLEES

PLASTICS CORPORATION A/K/A

BERRY STERLING CORPORATION

AND BPC HOLDING CORPORATION

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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION (footnote: 1)

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We have considered the motion filed by appellees requesting that we dismiss this appeal for appellants’ failure to prosecute the appeal.  On December 17, 2007, we notified appellants that their brief had not been filed and that their appeal may be dismissed for want of prosecution unless appellants or any party desiring to continue this appeal filed with the court on or before December 27, 2007, a response reasonably explaining the failure to timely file a brief.   See Tex. R. App. P. 38.8(a)(1).  Appellants did not file a response.

Accordingly, it is the court’s opinion that appellees’ motion should be granted; therefore, we dismiss the appeal for want of prosecution.   See Tex. R. App. P . 42.3(b)-(c), 43.2(f).

PER CURIAM

PANEL D: WALKER, J.; CAYCE, C.J.; and MCCOY, J.

DELIVERED: January 31, 2008

FOOTNOTES

1:

See Tex. R. App. P . 47.4.