                                                                                      ACCEPTED
                                                                                  12-14-00211-CV
                                                                     TWELFTH COURT OF APPEALS
                                                                                   TYLER, TEXAS
                                                                             6/4/2015 10:27:54 AM
                                                                                    CATHY LUSK
                                                                                           CLERK

                           No. 12-14-00211-CV

JOHN R. SOARD,             § IN THE COURT OF FILED
                                                APPEALSIN
                           §             12th COURT   OF
                                              TYLER, TEXAS
                                                          APPEALS

    Appellant,             §             6/4/2015 10:27:54 AM
                           §                  CATHY S. LUSK
v.                         §   TWELFTH DISTRICT   ClerkOF
                           §          TEXAS
TERRY THORN, SHEILA SMITH, §
AND MARY PAGE              §
                           §
    Appellees.             § SITTING IN TYLER, TEXAS

   APPELLEE’S MOTION TO DISMISS APPELLANT’S APPEAL

TO THE HONORABLE TYLER COURT OF APPEALS:

      Appellee Terry Thorn (“Appellee”) files this Motion to Dismiss

Appellant’s Appeal as follows:

                      SUMMARY OF ARGUMENT

      After numerous extensions and without adequate explanation,

Appellant John R. Soard (“Soard” or “Appellant”) has failed to file his brief,

which was due April 6, 2015. Soard has also failed to comply with the Clerk’s

April 9, 2015 notice requiring him to file a motion for extension of time

containing a reasonable explanation for his failure to timely file his

Appellant’s Brief no later than April 20, 2015. Accordingly, Appellee requests

dismissal of his appeal in its entirety for want of prosecution under Tex. R.

App. P. 42.3(b) and for Appellant’s failure to comply with the Clerk’s notice

under Tex. R. App. P. 42.3(c).


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                              BACKGROUND

      Soard filed his notice of appeal on April 4, 2014. Since that time, he

has filed numerous letters complaining of issues related to the

completeness of the Clerk’s Record and Reporter’s Record and received

numerous extensions of time to file his brief.

      On March 6, 2015, the Court sent notice to the parties that the case

was to be submitted on the Clerk’s Record alone. It ordered Soard to file his

Appellant’s Brief on or before April 6, 2015. After Soard failed to file his

brief, the Clerk sent its third Notice of Late Brief on April 9, 2015. The Clerk

notified Soard that his “appeal may be dismissed for want of prosecution

under Tex. R. App. P. 38.8(a)(1) unless a motion for extension of time,

containing a reasonable explanation for such failure and showing that

Appellee has not suffered material injury thereby, is filed no later than April

20, 2015.” Soard has since filed several more letters, raising the same

general complaints he has previously raised regarding the completeness of

the record, but he has not moved for an extension of time or explained his

failure to file his brief. Thus, he has not complied with the Clerk’s notice.




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                                 ARGUMENT

      Under Rule 42.3(b), a court of appeals, on the appellee’s motion or on

its own, may dismiss an appeal for want of prosecution when the appellant

fails to timely file its brief. Tex. R. App. P. 42.3(b). A court of appeals may

also dismiss an appeal when an appellant does not comply with a notice

from the clerk requiring a response within a specified time. Tex. R. App. P.

42.3(c).

      Soard has repeatedly failed to file his Appellant’s Brief, and despite

this Court’s granting several extensions of time, ordering that the case be

submitted on the Clerk’s Record alone, and imposing an April 6, 2015

deadline for Soard to file his Appellant’s Brief, he still has not done so. Nor

has he filed a response to the Clerk’s April 9, 2015 notice. Soard has been

cautioned by the Court and has failed to comply. Because pro se litigants

must be held to the same standards as any other litigant and must comply

with applicable and mandatory rules of pleading and procedure, Soard’s

failure to comply with the briefing deadline and Clerk’s notice warrants

dismissal of this appeal. Tex. R. App. P. 42.3(b) & (c); see also Morris v.

Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex. App.—Houston

[1st Dist.] 2011, no pet.) (“To apply a different set of rules to pro se litigants




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would be to give them an unfair advantage over litigants represented by

counsel.”).

                                    PRAYER

      Appellee Terry Thorn respectfully requests that the Court:

      1.)     Dismiss Appellant’s appeal in its entirety; and

      2.)     Award such other relief to which Appellee is entitled.



                                      Respectfully submitted,

                                        By: /s/ Michael A. Yanof
                                        Michael A. Yanof
                                        State Bar No. 24003215
                                        Cassie J. Dallas
                                        State Bar No. 24074105
                                        Thompson, Coe, Cousins & Irons,
                                        L.L.P.
                                        700 North Pearl St., 25th Floor
                                        Dallas, Texas 75201
                                        Telephone: (214) 871-8200
                                        Facsimile: (214) 871-8209
                                        Email: myanof@thompsoncoe.com

                                      ATTORNEYS FOR APPELLEE TERRY
                                      THORN




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                   CERTIFICATE OF COMPLIANCE

      I certify that this Motion to Dismiss Appellant’s Appeal complies with
Tex. R. App. P. 9.4. As to its length, it contains 575 words (not including the
matters excluded by Tex. R. App. P. 9.4(i)(1)). Notwithstanding, Rule 9.4(i)
does not govern motions.




                                    /s/ Michael A. Yanof___________
                                    Michael A. Yanof


                      CERTIFICATE OF SERVICE

      I hereby certify that on June 4, 2015, a true and correct copy of the
foregoing document was served via certified mail, return receipt requested,
to:

      John R. Soard                           Sheila Smith
      38 Delsie St.                           The Law Office of Sheila Smith
      Clarksville, AR 72830                   P.O. Box 10
                                              Frankston, TX 75763

      Mary Page
      2201 North Jackson Street
      Palestine, TX 75801




                                    /s/ Michael A. Yanof___________
                                    Michael A. Yanof




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