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.

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.

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)

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

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.

2138047v1 Respectfully submitted, THOMPSON, COE, COUSINS & IRONS, L.L.P.

By: /s/ Wade Crosnoe Wade C. Crosnoe State Bar No. 00783903 Email: [email protected] Jeff D. Otto State Bar No. 15345500 Email: [email protected] Tasha L. Barnes State Bar No. 00796163 Email: [email protected] Sara Berkeley Churchin State Bar No. 24073913 Email: [email protected] 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

2138047v1 COKINOS, BOSIEN & YOUNG

By: /s/ Jim Ewbank Karen L. Landinger State Bar No. 00787873 Email: [email protected] 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: [email protected] 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 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

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