






Kenneth Bing v. Kimberly Bing Thompson















IN THE
TENTH COURT OF APPEALS
 

No. 10-01-317-CV

     KENNETH BING, JR.,
                                                                              Appellant
     v.

     KIMBERLY BING THOMPSON,
     INDEPENDENT EXECUTOR OF THE
     ESTATE OF KENNETH W. BING,
                                                                              Appellee
 

From the 278th District Court
Madison County, Texas
Trial Court # 96-8175-278-10
                                                                                                                

MEMORANDUM OPINION
                                                                                                                

      Kenneth Bing, Jr. appeals an adverse judgment in a will contest.  This Court received Bing’s
brief on July 5, 2002.  We notified him by letter dated July 9 that his brief was defective because:
(1) it did not comply with the typeface requirements of the appellate rules; (2) it did not provide
a list of all parties to the judgment and of all trial and appellate counsel; (3) the statement of the
nature of the case did not provide record references; (4) it provided no authorities to support the
second point of error; and (5) it did not contain an appendix.  See Tex. R. App. P. 9.4(e), 38.1(a),
(d), (h), (j).  We directed Bing in this letter to file an amended brief which satisfied these
requirements within ten days.  Id. 38.9(a).
      After Bing failed to comply with this directive, we notified him by letter dated August 14 that
his appeal would be dismissed for want of prosecution if he failed to file a proper brief within ten
days.  Id. 38.8(1), 38.9(a), 42.3(c).  Bing’s counsel later informed the clerk’s office in a telephone
conversation that she had never received the August 14 letter because of difficulties with her mail
service.  We sent the letter again on August 23.  Bing has failed to comply.
      Rule of Appellate Procedure 38.9(a) provides:
(a) Formal Defects.  If the court determines that this rule has been flagrantly
violated, it may require a brief to be amended, supplemented, or redrawn.  If another
brief that does not comply with this rule is filed, the court may strike the brief, prohibit
the party from filing another, and proceed as if the party had failed to file a brief.

Id. 38.9(a).  Rule of Appellate Procedure 38.8(a)(1) provides that if an appellant fails to timely
file his 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).
      We notified Bing that his brief did not comply with Rule 38 and that he must file an amended
brief within ten days.  Id. 38.9(a).  After he failed to comply, we notified him that his appeal
would be dismissed for want of prosecution if he failed to file a proper brief.  Id. 42.3(b), 44.3. 
He has not responded to our letter.  Id. 42.3, 38.8(a)(1), 38.9(a).  Therefore, this appeal is
dismissed for want of prosecution.  Id. 38.8(a)(1).
 
                                                                   PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Dismissed for want of prosecution
Opinion delivered and filed September 18, 2002
Do not publish
[CV06]
