Kenneth Bing, Jr. v. Kimberly Bing Thompson, Independent Executrix of the Estate of Kenneth W. Bing--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-01-317-CV

KENNETH BING, JR.,

Appellant

v.

KIMBERLY BING THOMPSON,

INDEPENDENT EXECUTOR OF THE

ESTATE OF KENNETH W. BING,

Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 96-8175-278-10

MEMORANDUM OPINION

Kenneth Bing, Jr. appeals an adverse judgment in a will contest. This Court received Bing s brief on July 5, 2002. We notified him by letter dated July 9 that his brief was defective because: (1) it did not comply with the typeface requirements of the appellate rules; (2) it did not provide a list of all parties to the judgment and of all trial and appellate counsel; (3) the statement of the nature of the case did not provide record references; (4) it provided no authorities to support the second point of error; and (5) it did not contain an appendix. See Tex. R. App. P. 9.4(e), 38.1(a), (d), (h), (j). We directed Bing in this letter to file an amended brief which satisfied these requirements within ten days. Id. 38.9(a).

After Bing failed to comply with this directive, we notified him by letter dated August 14 that his appeal would be dismissed for want of prosecution if he failed to file a proper brief within ten days. Id. 38.8(1), 38.9(a), 42.3(c). Bing s counsel later informed the clerk s office in a telephone conversation that she had never received the August 14 letter because of difficulties with her mail service. We sent the letter again on August 23. Bing has failed to comply.

Rule of Appellate Procedure 38.9(a) provides:

(a) Formal Defects. If the court determines that this rule has been flagrantly violated, it may require a brief to be amended, supplemented, or redrawn. If another brief that does not comply with this rule is filed, the court may strike the brief, prohibit the party from filing another, and proceed as if the party had failed to file a brief.

Id. 38.9(a). Rule of Appellate Procedure 38.8(a)(1) provides that if an appellant fails to timely file his brief, the Court may:

dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure and the appellee is not significantly injured by the appellant s failure to timely file a brief.

Id. 38.8(a)(1).

We notified Bing that his brief did not comply with Rule 38 and that he must file an amended brief within ten days. Id. 38.9(a). After he failed to comply, we notified him that his appeal would be dismissed for want of prosecution if he failed to file a proper brief. Id. 42.3(b), 44.3. He has not responded to our letter. Id. 42.3, 38.8(a)(1), 38.9(a). Therefore, this appeal is dismissed for want of prosecution. Id. 38.8(a)(1).

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Dismissed for want of prosecution

Opinion delivered and filed September 18, 2002

Do not publish

[CV06]