FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 1, 2002
______________________________
BETTY ANN NEWBY, APPELLANT
V.
DAN MOSER, INDIVIDUALLY AND AS TRUSTEE; MOSER INVESTMENTS;
THE ESTATE OF LON MOSER, DECEASED; AND SHERIA EVANS, APPELLEES_________________________________
FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;
NO. 35,167; HONORABLE JACK D. YOUNG, JUDGE
_______________________________
Before REAVIS and JOHNSON, JJ. and BOYD, S.J. (1)
DISMISSALAppellant Betty Ann Newby filed an accelerated notice of appeal challenging the trial court's denial of her application for a temporary injunction and other motions. On June 26, 2002, the trial court sustained the contest filed by two court reporters to Newby's affidavit of indigence. On July 30, 2002, Newby filed a pro se document in this Court seeking an extension of time on behalf of the trial court clerk contending that the trial court clerk should not be permitted to request payment for the record because she did not file a contest to her affidavit of indigence. However, because the motion was not accompanied by the required filing fee, no ruling will be made regarding that motion.
By letter dated September 13, 2002, this Court notified Newby to make satisfactory arrangements to pay for the clerk's record within ten days or the appeal would be subject to dismissal. Although the Texas Rules of Appellate Procedure now impose the duty of filing the record with the trial court clerk, Newby must pay the clerk's fee or make satisfactory arrangements with the clerk to pay the fee. Tex. R. App. P. 35.3(a)(2). Pursuant to Rule 37.3(b), this Court may dismiss the appeal for want of prosecution if, due to appellant's fault, the trial court clerk fails to file the clerk's record. Furthermore, under Rule 42.3(c) this Court may dismiss an appeal, after giving ten days notice, for Newby's failure to comply with a notice from the Clerk requiring a response within a specified time.
Accordingly, because Newby did not comply with this Court's directive, the appeal is hereby dismissed for want of prosecution and for failure to comply with a notice from the Clerk of this Court. Tex. R. App. P. 42.3(b) & (c).
Don H. Reavis
Justice
Do not publish.
1.
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Through each issue, the Alfords question 1) whether a writ of possession could issue since the summary judgment was not final, and 2) whether their causes of action were properly severed from those of Mays. It is beyond dispute that mandamus is an extraordinary remedy. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994). One is not entitled to it simply because he may ask for it. In re Thorton-Johnston, 65 S.W.3d 137, 138 (Tex. App.--Amarillo 2001, orig. proc.). Instead, the applicant has a heavy burden to meet. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d at 305. Not only must he prove that the trial court abused its discretion, but also that the remedy offered by a later ordinary appeal is inadequate. Id.; Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992); In re Thorton-Johnson, 65 S.W.3d at 138. And, regarding the second prong, an appellate remedy is not inadequate simply because it may involve more delay or expense than obtaining an extraordinary writ. Walker v. Packer, 827 S.W.2d at 842. Instead, it must be shown that the relator stands to lose a substantial right if the appellate court does not intercede immediately. Id.
In attempting to establish their right to extraordinary relief, the Alfords do no more than purport to illustrate why the trial court erred or abused its discretion. They do not allege in their petition that they lack any remedy at law, that a later appeal would be inadequate, or that they would lose a substantive right if immediate relief were withheld. (1) Nor do they attempt to explain why presenting their complaints through an appeal would be inadequate. Furthermore, it is not an appellate court's duty to draft a relator's contentions for him or read into the petition that which he omits. This is especially so here given the Alfords' complaint that the trial court already afforded Mays "a pre-judgment right . . . that was neither pled nor proven . . . ."
Having failed in toto to address the second element of their burden, the Alfords did not prove their entitlement to the extraordinary relief sought. Accordingly, we deny the petition for mandamus.
Brian Quinn
Justice
1. Indeed, our records illustrate that they have filed two notices of appeal from the underlying cause of action.