Richard Cecil Peterson and Alma Peterson v. John Lawrence Jimenez, M.D., and Brian Phillip Perry, M.D.

ACCEPTED
04-15-00417-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
11/3/2015 2:33:40 PM
KEITH HOTTLE
CLERK

No. 04-15-00417-CV

FILED IN
4th COURT OF APPEALS
In the SAN ANTONIO, TEXAS
Court of Appeals 11/3/2015 2:33:40 PM
For the Fourth District KEITH E. HOTTLE
San Antonio, Texas Clerk

RICHARD CECIL PETERSON AND ALMA PETERSON,
Appellants

v.

JOHN LAWRENCE JIMENEZ, M.D. AND BRIAN PHILLIP PERRY, M.D.
Appellees

MOTION TO DISMISS FOR FAILURE TO PROSECUTE

TO THE HONORABLE COURT OF APPEALS:

Appellees John Lawrence Jimenez, M.D. and Brian Phillip Perry, M.D. file

this Motion to Dismiss for Failure to Prosecute.

I. Introduction

Appellants are Richard Cecil Peterson and Alma Peterson. Appellees are

John Lawrence Jimenez, M.D. and Brian Phillip Perry, M.D. Appellants filed their

notice of appeal on July 1, 2015. The clerk’s record was filed on August 5, 2015,

and the reporter’s record was filed on August 11, 2015. Then, on August 11, 2015

a supplemental clerk’s record was filed, and on August 19, 2015 a second

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reporter’s record was filed. Therefore, appellants’ brief was due on September 18,

2015.

However, appellants failed to file their brief or a motion for extension of

time. As a result, this Court ordered appellants to file an explanation for failing to

file their brief by October 5, 2015. In response, appellants sought a 45-day

extension to file their brief, providing that “Counsel for Appellants is a solo

practitioner and has been laboring under an unusually heavy schedule and needs

additional time to prepare Appellants’ brief.” Motion for Extension (9.29.15).

On October 1, 2015, this Court issued an order that granted appellants a 45-

day extension, extending the deadline for appellants to file their brief until

November 2, 2015. Also in the order, this Court set strict requirements before

appellants could seek an additional extension. (“Appellants are advised that no

further extensions of time will be granted absent a motion that (1) demonstrates

extraordinary circumstances justifying further delay, (2) advises the court of the

efforts counsel has expended in preparing the brief, and (3) provides the court

reasonable assurance that the brief will be completed and filed by the requested

extended deadline. The court does not generally consider a heavy work schedule

to be an extraordinary circumstance.”). However, even with the additional 45-day

extension appellants still failed to file their brief or a timely motion for extension

of time that meets the strict requirements set out by this Court.

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 II. Argument & Authorities

This Court has the authority to dismiss this appeal for want of prosecution

or, in the alternative, to affirm the trial court’s judgment. TEX. R. APP. P. 38.8,

42.3(b). Appellants’ continued failure to comply with this Court’s deadlines

establishes a lack of willingness to prosecute this appeal, which continues to harm

appellees. The clerk’s and reporter’s records before this Court are not extensive

and the judgment being appealed does not present extensive issues to be addressed

on appeal. Appellants’ claims against appellees were dismissed following

summary judgment after the trial court held the doctrine of res ipsa loquitar did not

apply to any claims against appellees. CR 287. Appellants’ delay in seeking

review of the trial court’s ruling continues to harm appellees by continuing to incur

attorney’s fee costs and the lack of finality of the judgment. Appellants continue to

disregard this Court’s deadlines and delay the appellate process without a proper

explanation for doing so. In light of appellants’ failure to file their brief in

accordance with this Court’s October 1, 2015 order, appellees respectfully request

this Court dismiss the appeal, or in the alternative, affirm the trial court’s

judgment. See TEX. R. APP. P. 38.8, 42.3(b).

III. Prayer

For the above reasons, appellees ask the Court to grant this motion and

dismiss this appeal or, in the alternative, to affirm the trial court’s judgment and

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grant appellee judgment for costs.

BRIN & BRIN, P.C.

/s/ Lorien Whyte
Lorien Whyte
State Bar No. 24042440
6223 IH 10 West
San Antonio, Texas 78201
(210) 341-9711 telephone
(210) 341-1854 facsimile

ATTORNEYS FOR APPELLEE
JOHN LAWRENCE JIMENEZ, M.D.
and BRIAN PHILLIP PERRY, M.D.

CERTIFICATE OF CONFERENCE

I certify that I have conferred with Richard Nunez, counsel for appellants,
and Mr. Nunez responded that he is opposed to this Motion to Dismiss for Failure
to Prosecute.

/s/ Lorien Whyte
Lorien Whyte

CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of November, 2015, in accordance with
the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure, a
true and correct copy of the foregoing document has been forwarded to the
following:

Richard J.W. Nunez
144 E. Price Road
Brownsville, Texas 78521
Phone: (956) 541-8502
Facsimile: (956) 541-8623
/s/ Lorien Whyte
Lorien Whyte
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