Marian Wallis Spigener v. Imogene Wallis

Marian Wallis Spigener, et al. v. Imogene Wallis, et al.

IN THE

TENTH COURT OF APPEALS

No. 10-98-078-CV

     MARIAN WALLIS SPIGENER AND

     ROSE LYNN McCULLOUGH,

                                                                                        Appellants

     v.

     IMOGENE MARIE WALLIS, THERESA ANN

     GARTMAN, LOYD ELMO WALLIS, IVY LOREE

     LEWIS, LAUREL JUANICE WICHTERICH, DONNA

     JANE WALLIS JENKINS, CARROLL RAY WALLIS,

     JOY WYMAN WALLIS, SUSAN LANELL WALLIS

     BARNETT, AND BEVERLY GAIL WALLIS HOLMES,

                                                                                        Appellees

From the 18th District Court

Johnson County, Texas

Trial Court # 229-94

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Appellees filed suit against Appellants for partition of two tracts of land comprising slightly more than thirty-three acres which Appellees co-owned with Appellant Marian Wallis Spigener. Appellees also sought a writ of possession to compel Appellant Rose Lynn McCullough to vacate the premises. Appellants filed cross-claims asserting fraud and seeking to offset Appellees’ claims by unpaid back rentals which Appellants claimed Appellees owed them for permitting others to use the property in question.

      Appellees non-suited McCullough. The court entered a default judgment on December 12, 1997 after Spigener failed to appear for trial. The court determined the ownership interests of the various parties, found that the property was not susceptible to partition in kind, and appointed a receiver to sell the property and distribute the proceeds according to the percentages of ownership set out in the partition order.

      Spigener filed a motion for new trial on December 24. She filed a “Notice of Appeal and Application for Writ of Error” on February 23, 1998. McCullough filed her “Notice of Appeal and/or Application for Writ of Error” with this Court on June 10, 1998. The clerk’s record was filed on March 27, and the reporter’s record was filed on May 26. A supplemental clerk’s record was filed on June 25. On the same date we received the supplemental clerk’s record, we advised Appellants by letter that their briefs would be due thirty days thereafter.

      Although Appellants’ briefs were due on July 27, no briefs have been filed. Tex. R. App. P. 38.6(a). Appellate Rule 38.8(a)(1) provides that if an appellant fails to timely file her brief, the Court may:

dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant’s failure to timely file a brief.

Id. 38.8(a)(1).

      Thirty days have passed since Appellants’ briefs were due. We notified them of this defect by letter on August 5. Id. 42.3, 44.3. They have not responded to our letter showing grounds for continuing the appeal, nor have they provided a reasonable explanation for failing to file their briefs. Id. 42.3, 38.8(a)(1). Therefore, this appeal is dismissed for want of prosecution. Id. 38.8(a)(1).

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance 

Dismissed for want of prosecution

Opinion delivered and filed August 26, 1998

Do not publish

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Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

  (Chief Justice Gray concurs in the court’s judgment with a note)*

Petition denied

Opinion delivered and filed September 22, 2010

[OT06]

 

            *(Chief Justice Gray joins no part of the Court’s opinion.  A separate opinion will not issue.  He notes, however, that there are some motions on which a trial court may never have a duty to rule.  See In re Davis, 10-10-0242-CV, August 25, 2010 (Chief Justice Gray Concurring); In re Birdwell, 224 S.W.3d 864 (Tex. App.—Waco 2007) (orig. proc.) (Chief Justice Gray Concurring).  Unless the refusal to rule on a motion impedes the development and ultimate disposition of a proceeding a trial court need not rule on the motion.  Pro se inmates are notorious for filing motions that simply do not need to be ruled upon to properly dispose of a case.  We have no way of knowing if the motions Comeaux complains that the trial court has not ruled upon are such motions because he has not provided us with a record of those motions.  I also note that at least part of the delay may have been caused by Comeaux’s escape.  Accordingly, for these reasons, Chief Justice Gray joins the court’s judgment to the extent it denies the relief requested by Comeaux.)

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[1] Comeaux replies that he lacks access to the Rules of Appellate Procedure.  Because of our disposition and to expedite it, we will implement Rule 2 and suspend the applicable rules in this proceeding only.  Tex. R. App. P. 2.