Court of Appeals of Texas, Second District, Fort Worth
IN THE INTEREST OF B.B. AND T.B.
COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY TRIAL COURT NO.
GABRIEL, KERR, and PITTMAN, JJ.
MEMORANDUM OPINION 
appeal from a divorce proceeding affecting the parent-child
relationship, appellant S.B. (Saul) failed to timely file a
compliant appellate brief even though we granted him a total
of five extensions to do so. See Tex. R. App. P.
38.6, 38.8(a). Appellee A.B. (Angela) filed a motion to
dismiss Saul's appeal, arguing that dismissal was
warranted because Saul failed to diligently prosecute his
appeal and did not comply either with the rules of appellate
procedure or with this court's orders. See Tex.
R. App. P. 42.3(b)-(c). We grant the motion. See
Tex. R. App. P. 38.8(a)(1), 42.3.
dispel any inference that we are unnecessarily determining
this appeal based on "harmless procedural defects,
" we must discuss the procedural history in this court.
Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008).
Saul's appellate brief was initially due October 13,
2017. Two days before the deadline, Saul's appellate
counsel, Rebecca Davis, filed a motion asking for a sixty-day
extension because she had been "out of state"
between September 27 and October 8 "for a death in her
immediate family." We granted the motion in part, giving
Saul until November 13. Davis filed a second extension motion
on November 13 because her computer "crashed, "
deleting "[t]he entire contents of [Saul's]
brief." We granted the motion and set the due date for
December 13. On December 11, Davis filed a third extension
motion, which she referred to as her "final"
request, asking for a thirty-day extension based on an
illness. We granted this motion, and ordered Saul's brief
to be filed no later than January 16, 2018. On January 16,
Davis filed a fourth motion for extension. In this motion,
Davis asserted that she "never received the clerk's
record, and it was only today which counsel for [Saul] made
such discovery." We granted the motion, giving Saul
until January 29 to file his brief; however, we clearly
stated in the order that "NO FURTHER EXTENSIONS
WILL BE GRANTED." Davis electronically filed
each extension motion. See Tex. R. App. P. 9.2(c).
January 30, the day after the brief was due, Davis attempted
to electronically file Saul's appellate brief. We struck
the brief that same day via the electronic-filing system for
noncompliance with the applicable rules of appellate
procedure and gave Saul until February 2 to file a conforming
brief. See Tex. R. App. P. 9.4(k). Two hours later,
Davis electronically filed a "Motion for Submission of
Amended Brief" in which she requested an order
"that this Amended Brief be due on February 2, 2017
[sic]." Davis did not attach or otherwise attempt to
file the brief along with the motion. We struck the motion,
which was noncompliant for a myriad of reasons. See
id. Davis again electronically filed the motion for
submission of amended brief on January 31. The next
day-February 1-Angela responded to Saul's motion and
filed a motion to dismiss Saul's appeal for want of
prosecution and for failing to comply with the appellate
rules or this court's orders. See Tex. R. App.
hours later, Davis electronically filed a response to
Angela's motion to dismiss, stating that Saul's
"brief will be filed on February 2, 2017 [sic]" and
explaining that the brief "would have been timely
filed" if not for "technological
malfunctions." Davis asserted that she had spent
"approximately 250 hours" on Saul's brief,
which she argued negated any inference of a failure to
prosecute. On February 2, we granted Saul's motion for
submission of amended brief and ordered Davis to file
Saul's brief no later than February 5. Again, we stated
that "NO FURTHER EXTENSIONS WILL BE
February 6 at 4:21 p.m., the clerk's office received by
hand delivery one paper copy of an unsigned
brief accompanied by a cover letter, an
affidavit by Davis, and an affidavit by Davis's
assistant. In the cover letter, Davis apologized for wasting
this court's and Angela's time and stated that
"the delays in this matter" were "due to
modern technology." In the affidavits, Davis and her
assistant averred that when Davis was working from home and
attempting to electronically file Saul's brief at 5:00
p.m. on February 5, Davis "lost an internet
connection." Davis and her assistant could not locate
the "IT tech, " and even though they tried until
12:45 a.m. on February 6 and even though Davis had a second
laptop at her home that had an internet connection, they
could not electronically file the brief. When Davis returned
to her office at 11:00 a.m. on February 6, the computer
problem was resolved in fifteen minutes; however, Davis
submitted a paper copy of the unsigned brief to the
clerk's office five hours later. Because the
hand-delivered brief again was noncompliant and because none
of the documents had been electronically filed, we returned
them to Davis on February 9.
given Davis multiple opportunities to timely file a compliant
brief. See Tex. R. App. P. 44.3. She has failed to
take advantage of any of them. Some of her explanations for
the extensions were contradictory if not implausible. Indeed,
it seems unlikely that Davis would have completed a brief in
November 2017 that could not be electronically filed due to
technical difficulties but failed to discover that she had
not received a copy of the clerk's record until January
2018. And even though her most recent computer
problems were resolved before noon on February 6, Davis did
not attempt to electronically file Saul's brief, choosing
instead to hand deliver a paper copy of an unsigned brief.
conclude that Angela is correct: Saul has failed to comply
with the rules of appellate procedure, has disregarded this
court's orders, and has not prosecuted his appeal with
diligence. See Tex. R. App. P. 42.3; Brown v.
Bryant, 181 S.W.3d 901, 902 (Tex. App.-Dallas 2006, pet.
denied); Plummer v. Reeves, 93 S.W.3d 930, 931-32
(Tex. App.-Amarillo 2003, pet. denied). Saul has failed to
provide a reasonable explanation for these failures and has
not established that Angela was not significantly injured by
his failure to timely file a brief. See Tex. R. App.
P. 38.8(a)(1); cf. Tex. R. App. P. 10.5(b)(1)(C)
(requiring extension motions to include reasonable
explanation for the need for extension); Simon v.
Dillard's, Inc., 86 S.W.3d 798, 800-01 (Tex.
App.-Houston [1st Dist.] 2002, order) (denying extension to
file rehearing motion based on appellant's failure to
justify need for extension). We therefore dismiss Saul's
appeal. See Tex. R. App. P. 38.8(a)(1), 42.3(b)-(c),
See Tex. R. App. P.
We use fictitious names to refer to the
parties. See Tex. Fam. Code Ann. § 109.002(d)