                                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.




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      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




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