                                                                                                    ACCEPTED
                                                                                                 01-15-00110-cv
                                                                                     FIRST COURT OF APPEALS
                                                                                             HOUSTON, TEXAS
                                                                                          5/18/2015 11:14:31 AM
                                                                                          CHRISTOPHER PRINE
                                                                                                         CLERK



                                NO. 01-15-001100-CV
                                                                          FILED IN
JAMES WILLIAMS                           §                  1st COURT
                                               IN THE COURT OF        OF APPEALS
                                                                APPEALS
                                                                HOUSTON, TEXAS
  Appellant                              §                         5/18/2015 11:14:31 AM
                                         §                        1ST DISTRICT
                                                                    CHRISTOPHER A. PRINE
VS.                                      §                                  Clerk
                                         §                  HOUSTON, TEXAS
PATRICK CUBA SR.
  Appellee
                           MOTION TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:
      COMES NOW, PATRICK CUBA, SR., Appellant in the above referenced
matter, and files MOTION TO DISMISS, and would respectfully show unto the
Court as follows:
                                                   I.

      This appeal arises from a Summary Judgment entered on November 7, 2014.

This appeal should be dismissed for want of jurisdiction and for want of prosecution

for the following reasons. .

      Appellant did not timely file a Motion for New Trial;

      Appellate failed to timely file a Notice of Appeal;

      Appellant has failed to pay costs of appeal; and

      No Clerks record has been filed and there is no indication of any attempt to

obtain the clerks record or pay the costs for the record.

                                             II.

      The relevant timeline for the basis of this motion is as follows:
 Judgment was entered on November 7, 2014, ( See Appendix - Exhibit 1
  )

 Appellant filed a Motion seeking a new trial amongst other relief on
  Wednesday, December 10, 2014. (See Appendix - Exhibit 2)

 On January 20, 2015, the Trial Court denied the relief sought in the
  Motion filed on December 10, 2015 for lack of Plenary Jurisdiction. (See
  Appendix - Exhibit 3)

 On January 30, 2015 the Appellant filed a notice of appeal with the Trial
  Court.

 On February 5, 2015 the clerk of the court5 sent a letter to Counsel
  outlining various prospective due dates for the Appellate record and
  payment of the filing fee for the appeal.

 On February 11, 2015,the undersigned sent a letter to the Court Clerk for
  the Court of Appeals agreeing to the March 7, 2015 due date of the
  Appellate record, despite Appellant’s position that the Motion for New
  Trial was not timely filed.

 On February 25, 2015 the filing fee for this appeal was due.

 On February 25, 2105 the docketing statement was due to be filed by
  Appellant.

 On February 26, 2015 the Clerk sent a Notice to Appellant that the filing
  fee was past due, stating the appeal may be dismissed if the fee is not
  received on or before March 30, 2015..

 On March 7, 2015 the records for the appeal was due.

 On March 9, 2015 the Clerk of the Court of Appeals sent a notice to the
  parties that the Appellate Record was past due, and advising Appellant to
  file a Motion for Extension within 30 days.

 On April 8, 2015 the Appellate Record was due per the Clerks Notice of
  March 9, 2015.
                                           II.

      To date Appellant has not filed any Motion for Extension of Time.

      There is no indication of any attempt to secure the Clerks Record, or arrange to

      pay for such. The Appellant has not paid the filing fee nor has Appellant filed

      the docketing statement.

                                          III.

      Appellants Motion for New Trial was due on Monday, December 8, 2014. Tex.

R. Civ. P 929b (a); Tex. R. Civ. P. 4. Failure to timely file the Motion for New Trial

caused the Trial Court to lose plenary jurisdiction before the Motion for New Trial was

filed on December 10, 2014. The failure to timely file the Motion for New trial made

the Notice of Appeal due on December 8, 2014. The Notice of Appeal filed on

January 20, 2015 was untimely. Tex. R. App. P. 26.1 The untimely filing of the Notice

of Appeal fails to invoke the jurisdiction of the Court of Appeals.

                                           IV

      The Appellant has failed take any steps to prosecute this appeal, beyond the

filing of the Notice of Appeal. Pursuant to Rule 42.3 Appellant seeks dismissal of the

Appeal for failure to pay the filing fees, file the docketing statement, and failure to

secure and arrange for the filing of the Appellate Record.
                                           V.

                        CERTIFICATE OF CONFERENCE

      On May 15, 2015, the undersigned counsel spoke with Counsel for Appellant

and advised of intent to file this motion. Counsel for Appellant stated that she is

opposed to the dismissal of this Appeal.

                                       PRAYER



      WHEREFORE, PREMISES CONSIDERED, Appellant, PATRICK CUBA,

SR. prays the Court of Appeals dismiss this appeal, and for such other and further

relief to which Appellant may show himself to be justly entitled.

                                  Respectfully submitted,

                                  LAW OFFICES OF KILPATRICK, WHITE &
                                  DEAS


                                  BY:
                                  Alan Janiga
                                  SBN: 10570050
                                  801 Louisiana Street, Suite 500
                                  Houston, TX 77002
                                  Phone: (713) 546-2000
                                  Fax: (713) 228-3297
                                  Attorney for Appellant
                                  PATRIC CUBA SR.
                         CERTIFICATE OF SERVICE

     I certify that on this 18TH day of May, 2015, service required under these rules
was made pursuant to Tex. R. App. P. 9.5

      Sonya Chandler-Anderson
      405 Main St., Suite 700
      Houston, Texas 77002
      sonya@attsonyaandersonlaw.com
      facsimile (866) 274-8878




                                Alan Janiga
