                                                                                            ACCEPTED
                                                                                       03-14-00490-CV
                                                                                              3834183
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  1/20/2015 4:35:50 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                                No. 03-14-00490-CV

MELANIE C. JEANES,           §               IN THE                   FILED IN
                                                               3rd COURT OF APPEALS
                             §                                     AUSTIN, TEXAS
     Appellant               §                                 1/20/2015 4:35:50 PM
                             §                                   JEFFREY D. KYLE
v.                           §                                         Clerk
                             §
SIGMA PHI EPSILON            §               THIRD COURT OF APPEALS
FRATERNITY, INC. (NATIONAL), §
THE UNIVERSITY OF TEXAS      §
SIG EP FOUNDATION, SHALE     §
GULBAS, and the SIGMA PHI    §
EPSILON FRATERNITY (TEXAS §
ALPHA CHAPTER),              §
                             §
     Appellees               §               AT AUSTIN

  APPELLEES’ JOINT MOTION TO DISMISS APPEAL FOR WANT OF PROSECUTION

        Appellees Signma Phi Epsilon Fraternity Inc. (National), the University of

Texas Sig Ep Foundation, Shale Gulbas, and the Sigma Phi Epsilon Fraternity

(Texas Alpha Chapter), file this Motion to Dismiss Appeal for Want of Prosecution

and would respectfully show that this appeal should be dismissed because of the

Appellant’s failure to file her brief or seek an extension, and her repeated and

continuing lack of compliance with the Texas Rules of Appellate Procedure and

this Court’s directives. All of these omissions give rise to a more than reasonable

inference that Appellant has no intention of diligently prosecuting her appeal, and

thus justify dismissal of the appeal.




                                         1
2138047v1
I.      Background

        Appellant Melanie C. Jeanes appeals from a summary judgment granted in

favor of Appellees. She is represented by her father, who is a licensed Texas

attorney.

        Jeanes filed her Notice of Appeal on August 6, 2014, but did not pay the

required filing fee or file a Docketing Statement at that time. See Tex. R. App. P.

5, 32.1. By letter dated August 29, 2014, the clerk’s office advised Jeanes’s

counsel that after leaving four phone messages for him, the Court was returning his

check and requesting that he contact the Court about the proper method of paying

the filing fee (Ex. 1, a true and correct copy of the August 29, 2014 letter).

Jeanes’s counsel did nothing in response to this letter.

        Two months later, the clerk’s office sent Jeanes’s counsel another letter

advising him that the clerk’s record was overdue and that the district clerk’s office

had notified the Court that Jeanes had neither paid nor made arrangements to pay

for the clerk’s record (Ex. 2, a true and correct copy of the October 27, 2014

letter). This letter also directed Jeanes’s counsel to make arrangements for the

clerk’s record and submit a status report by November 6, 2014 (Ex. 2). Finally, the

letter warned that failure to comply may result in dismissal of the appeal for want

of prosecution (Ex. 2). Although the clerk’s record was eventually filed, Jeanes’s

counsel never submitted the status report requested by the Court.


                                          2
2138047v1
        On December 8, 2014, the clerk’s office sent a letter notifying the parties

that the clerk’s record was filed on that date. This letter also reminded Jeanes’s

counsel that “appellant’s $195 notice of appeal filing fee and docketing statement

are both past due and must be submitted as soon as possible” (Ex. 3, a true and

correct copy of the December 8, 2014 letter) (emphasis in original). Once again,

Jeanes’s counsel did nothing in response to this letter.

        The deadline to file Appellant’s Brief was January 7, 2015—thirty days after

the clerk’s record was filed. See Tex. R. App. P. 38.6(a). As of the filing of this

motion, Jeans has not filed a brief, nor has she requested an extension of time from

this Court to file her brief. Moreover, she still has not paid the filing fee or filed

the docketing statement, despite multiple reminders from the Court.

II.     Arguments & Authorities

        This Court may dismiss an appeal for want of prosecution when the

appellant fails to file her brief in the time prescribed and does not provide a

reasonable explanation for the failure.       See Tex. R. App. P. 38.8(a)(1); e.g.,

Elizondo v. City of San Antonio, 975 S.W.2d 61, 63 (Tex. App.—San Antonio

1998, no pet.); Carr II v. JP Morgan Chase Bank, N.A., No. 05-13-01352-CV,

2014 WL 1022431 (Tex. App.—Dallas Feb. 27, 2014, no pet.). Likewise, the

Court has the authority to dismiss an appeal if the appellant does not comply with

the rules, a court order, or a notice from the clerk. See Tex. R. App. P. 42.3(b),(c)


                                          3
2138047v1
(authorizing dismissal for want of prosecution or “failure of appellant to comply

with [the Texas Rules of Appellate Procedure], a notice from the clerk requiring a

response or other action within a specified time.”).

        Despite the clerk’s reminders, Jeanes has never paid the appeal filing fee

required by Tex. R. App. P. 5 or filed the docketing statement required by Tex. R.

App. P. 32.1 (Exs. 1, 3).       Jeanes has also failed to submit the status report

requested by the Court, despite being explicitly warned that not doing so could

result in dismissal of her appeal (Ex. 2). This appeal should therefore be dismissed

based on Jeanes’s serial lack of compliance with the Texas Rules of Appellate

Procedure and notices from the Court. See Tex. R. App. P. 42.3(c); EID Corp. v.

State, No. 03-13-00361-CV, 2013 WL 4821855, at *1 (Tex. App.—Austin Aug.

30, 2013) (dismissing appeal for want of prosecution for appellants’ failure to

make arrangements for payment of the record after the court’s clerk informed

appellants that payment was overdue and failure to comply could result in

dismissal).

        Jeanes’s appeal also should be dismissed for failure to file her brief. See Tex.

R. App. P. 38.8(a)(1); Bach v. Tex. State Univ., No. 03-14-00395-CV, 2014 WL

7467004 (Tex. App.—Austin, Dec. 17, 2014, no pet.).              The deadline to file

Jeanes’s brief was January 7, 2015, but she still has not filed it. Moreover, she has

not asked this Court for an extension of time to file the brief or provided a


                                            4
2138047v1
reasonable explanation for her failure to meet the deadline. As this Court has done

in other similar cases, it should dismiss Jeanes’s appeal for want of prosecution.

See Taps Motors, L.L.C. v. Estrada, No. 03-14-00444-CV, 2014 WL 6844978, at

*1 (Tex. App.—Austin, Nov. 26, 2014, no pet.); Simek v. Humphrey, No. 03-14-

00439-CV, 2014 WL 6612572, *1 (Tex. App.—Austin, Nov. 21, 2014, no pet).

III.    Conclusion

        From the outset of this appeal, Jeanes has not complied with the Texas Rules

of Appellate Procedure and not responded to repeated directives from the Court.

Her failure to file her Appellant’s Brief by the deadline or to seek an extension is

only the latest example. Accordingly, Appellees respectfully request that the Court

dismiss this appeal for want of prosecution and award them all other relief to

which they are entitled, including an award of their appeal costs.




                                          5
2138047v1
            Respectfully submitted,

            THOMPSON, COE, COUSINS & IRONS, L.L.P.


            By: /s/ Wade Crosnoe
                 Wade C. Crosnoe
                 State Bar No. 00783903
                 Email: wcrosnoe@thompsoncoe.com
                 Jeff D. Otto
                 State Bar No. 15345500
                 Email: jotto@thompsoncoe.com
                 Tasha L. Barnes
                 State Bar No. 00796163
                 Email: tbarnes@thompsoncoe.com
                 Sara Berkeley Churchin
                 State Bar No. 24073913
                 Email: schurchin@thompsoncoe.com

            701 Brazos, Suite 1500
            Austin, Texas 78701
            Telephone: (512) 708-8200
            Telecopy: (512) 708-8777

            Attorneys for Appellees Sigma Phi Epsilon
            Fraternity (Texas Alpha Chapter) and Shale
            Gulbas




              6
2138047v1
                                       COKINOS, BOSIEN & YOUNG


                                       By: /s/ Jim Ewbank
                                            Karen L. Landinger
                                            State Bar No. 00787873
                                            Email: klandinger@cbylaw.com

                                       10999 West IH-10, Suite 800
                                       San Antonio, Texas 78230
                                       (210) 293-8700 (Office)
                                       (210) 293-8743 (Direct)
                                       (210) 293-8733 (Fax)

                                       Jim Ewbank
                                       State Bar No. 06752710
                                       Email: jewbank@cbylaw.com
                                       1210 Nueces Street
                                       Austin, Texas 78701
                                       (512) 476-1080 (Office)
                                       (512) 476-7770 (Fax)

                                       Attorneys for Appellees Sigma Phi Epsilon
                                       Fraternity, Inc. and the University of Texas
                                       Sig Ep Foundation


                          CERTIFICATE OF CONFERENCE

      I certify that on the morning of January 20, 2015, I called Appellant’s
counsel at his office phone number but was unable to leave a message because the
recording said that his voicemail box was full. I also sent an email to his last
known email address asking him whether he would oppose a motion to dismiss this
appeal for want of prosecution, but had received no response as of the filing of this
motion.



                                             /s/ Wade Crosnoe
                                             Wade Crosnoe

                                         7
2138047v1
                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Motion to Dismiss
Appeal for Want of Prosecution has been forwarded to the following counsel via
(1) electronic service or (2) email and certified mail on this 20th day of January,
2015:


C. Wesley Jeanes
Law Office of C. Wesley Jeanes
6103 Stefani Drive
Dallas, Texas 75225
Counsel for Appellant




                                            /s/ Wade Crosnoe
                                            Wade Crosnoe




                                        8
2138047v1
EXHIBIT 1
                                                                                               FILE COPY




                                       COURT OF APPEALS
                                          THIRD DISTRICT OF TEXAS
                                            P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
                                                    www.3rdcoa.courts.state.tx.us
                                                          (512) 463-1733



J. WOODFIN JONES, CHIEF JUSTICE                                                  JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
JEFF L. ROSE, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
                                          August 29, 2014


Mr. C. Wesley Jeanes
Law Office of C. Wesley Jeanes
6103 Stefani Drive
Dallas, TX 75225
* DELIVERED VIA E-MAIL *


RE:      Court of Appeals Number:    03-14-00490-CV
         Trial Court Case Number:    D-1-GN-14-001331

Style:    Melanie C. Jeanes
          v. Sigma Phi Epsilon Fraternity, Inc. (National); The University of Texas Sig Ep
          Foundation; Shale Gulbas; and the Sigma Phi Epsilon Fraternity (Texas Alpha Chapter)


Dear Counsel:
         After four (4) phone calls, leaving messages, I am returning appellant's check (No. 7665),
with a request that appellant's attorney contact this office for the proper method of paying the NOA
filing fee.


                                                      Very truly yours,

                                                      JEFFREY D. KYLE, CLERK



                                                      BY:   Courtland Crocker
                                                            Courtland Crocker, Deputy Clerk
EXHIBIT 2
                                                                                               FILE COPY




                                       COURT OF APPEALS
                                            THIRD DISTRICT OF TEXAS
                                            P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
                                                   www.txcourts.gov/3rdcoa.aspx
                                                          (512) 463-1733



J. WOODFIN JONES, CHIEF JUSTICE                                                  JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
JEFF L. ROSE, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
                                         October 27, 2014

Mr. C. Wesley Jeanes
Law Office of C. Wesley Jeanes
6103 Stefani Drive
Dallas, TX 75225
* DELIVERED VIA E-MAIL *

RE:      Court of Appeals Number:    03-14-00490-CV
         Trial Court Case Number:    D-1-GN-14-001331
Style:    Melanie C. Jeanes
          v. Sigma Phi Epsilon Fraternity, Inc. (National); The University of Texas Sig Ep
          Foundation; Shale Gulbas; and the Sigma Phi Epsilon Fraternity (Texas Alpha Chapter)

Dear Mr. C. Wesley Jeanes:
        The Clerk of this Court filed appellant's notice of appeal on Wednesday, August 06, 2014.
The clerk’s record was due in this Court on September 05, 2014 and is overdue. Notice was
received from the district clerk’s office of Travis County, Texas on October 20, 2014, indicating
appellant has neither paid, nor made arrangements for payment, for the clerk’s record. Accordingly,
the clerk’s record will not be timely filed.
        Appellant is requested to make arrangements for the record and submit a status report
regarding this appeal. A response regarding this matter is requested by this Court on or before
November 06, 2014. Failure to do so may result in the dismissal of this appeal for want of
prosecution. See Tex. R. App. P. 37.3(b).
        If appellant has not already done so, he is instructed to make a written request to the court
reporter and make arrangements for payment of the record. If appellant does not wish to pursue this
appeal, please file a motion to dismiss.

                                                      Very truly yours,

                                                      JEFFREY D. KYLE, CLERK

                                                      BY:   Amy Strother
                                                            Amy Strother, Deputy Clerk

cc:      Ms. Natasha Barnes
         Mr. Jim Ewbank
EXHIBIT 3
                                                                                                   FILE COPY




                                          COURT OF APPEALS
                                               THIRD DISTRICT OF TEXAS
                                                P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
                                                       www.txcourts.gov/3rdcoa.aspx
                                                              (512) 463-1733



J. WOODFIN JONES, CHIEF JUSTICE                                                      JEFFREY D. KYLE, CLERK
DAVID PURYEAR, JUSTICE
BOB PEMBERTON, JUSTICE
JEFF L. ROSE, JUSTICE
MELISSA GOODWIN, JUSTICE
SCOTT K. FIELD, JUSTICE
                                            December 8, 2014


Mr. C. Wesley Jeanes                                         Ms. Natasha Barnes
Law Office of C. Wesley Jeanes                               701 Brazos, Suite 1500
6103 Stefani Drive                                           Austin, TX 78701-3293
Dallas, TX 75225                                             * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *

Mr. Jim Ewbank
Cokinos, Bosien & Young
1210 Nueces Street
Austin, TX 78701
* DELIVERED VIA E-MAIL *

RE:      Court of Appeals Number:        03-14-00490-CV
         Trial Court Case Number:        D-1-GN-14-001331

Style:    Melanie C. Jeanes
          v. Sigma Phi Epsilon Fraternity, Inc. (National); The University of Texas Sig Ep
          Foundation; Shale Gulbas; and the Sigma Phi Epsilon Fraternity (Texas Alpha Chapter)

Dear Counsel:
         On December 08, 2014, the one-volume clerk's record was filed in this Court.
       Please be advised appellant’s $195.00 notice of appeal filing fee and docketing statement are
both past due and must be submitted as soon as possible.

                                                          Very truly yours,

                                                          JEFFREY D. KYLE, CLERK


                                                          BY:   Courtland Crocker
                                                                Courtland Crocker, Deputy Clerk



cc:      The Honorable Amalia Rodriguez-Mendoza
