
NO. 07-09-0017-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JUNE 4, 2009

______________________________


ARVELL RABE, A.J. RABE, INC., D/B/A 
EASTEX LIVESTOCK AND HAY COMPANY, APPELLANTS

V.

LUBBOCK FEEDERS, L.P. AND KNOXVILLE
LIVESTOCK AUCTION CENTER, INC., APPELLEES


_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2008-544,279; HONORABLE RUBEN REYES, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          On August 6, 2008, Appellee, Lubbock Feeders, Inc., filed an interpleader action
against Appellants, Arvell Rabe and A.J. Rabe, Inc., d/b/a Eastex Livestock and Hay
Company (collectively Rabe), and Appellee, Knoxville Livestock Auction Center, Inc.
(hereinafter Knoxville), due to multiple conflicting claims being asserted by Rabe and
Knoxville to funds arising from the sale of cattle.  In conjunction with the filing of that
proceeding, Lubbock Feeders deposited into the registry of the trial court the disputed
proceeds of $56,177.15.  Prior thereto, on July 8, 2008, Knoxville had obtained a
Tennessee judgment against Rabe in the sum of $78,220.56, plus interest and costs of
court.  Knoxville filed the foreign judgment in the interpleader action.  Upon Knoxville’s
motion for summary judgment, the trial court ordered that it recover the disputed funds, less
attorney’s fees and costs due Lubbock Feeders.  Rabe, proceeding pro se, filed a notice
of appeal challenging the trial court’s summary judgment.  The appellate record was filed
on March 30, 2009, and Rabe’s brief was due to be filed on April 29, 2009.
          On May 1, 2009, Rabe filed a Motion for Continuance requesting time to retain legal
counsel.  Knoxville objected to the motion and requested dismissal of the appeal for Rabe’s
failure to file a brief.  Lubbock Feeders subsequently filed a Motion to Dismiss Appeal for
Want of Prosecution pursuant to Tex. R. App. P. 38.8(a)(1).  By letter dated May 13, 2009,
this Court advised the parties that dismissal for failure to file a brief was not permitted
without affording the noncompliant party an opportunity to cure the defect.  See Tex. R.
App. P. 38.8(a)(1) & 42.3(b).  Rabe’s Motion for Continuance was denied and he was
directed to file his brief by May 26, 2009, with the proviso that failure to do so would result
in dismissal of this appeal.
          Rabe did not respond to this Court’s notice of May 13, 2009.  Neither was the brief
filed as directed by that notice.  Consequently, we grant Lubbock Feeders’s Motion to
Dismiss Appeal for Want of Prosecution.
          Accordingly, the appeal is dismissed for want of prosecution and failure to comply
with an order of the Court.  Tex. R. App. P. 42.3(b) & (c).

                                                                           Patrick A. Pirtle
                                                                                 Justice


