Eugene Peiskee, et al. v. The City of Hearne--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-02-00218-CV

Eugene Peiskee et al.,

Appellants

v.

The City of  Hearne,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 01-06-16,237-CV

MEMORANDUM OPINION

Appellant Eugene Peiskee has filed a motion to dismiss the appeal. The motion complies with the relevant rule. See Tex. R. App. P. 42.1(a)(1).

On September 28, 2004, the Clerk notified the parties as follows:

Pursuant to Rules 42.3 and 44.3 of the Texas Rules of Appellate Procedure, you are notified that this cause is subject to dismissal for want of jurisdiction because it appears that the motion for new trial, and thus the notice of appeal, is untimely. See Tex. R. App. P. 26.1, 42.3(a), 44.3; Tex. R. Civ. P. 329b(a). Further, it appears from the record before this Court that the consolidation order of July 29, 2002, added new parties and claims to the cause below. This raises the question of what effect the consolidation had on the finality of the judgment that is the subject of this appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Therefore, this Court may dismiss this appeal unless, within fourteen days of the date of this letter, a response is filed showing grounds for continuing the appeal.

Finally, after requests for a status report regarding the referral to mediation, the parties advised the Court that they had settled the cause below. As of this date, however, the parties have filed nothing that would dispose of this appeal as a result of the settlement. The appellant, Eugene Peiskee, must notify the Court of the status of the mediation within fourteen days of the date of this letter. The failure to file a timely response to this letter may also result in dismissal of this appeal. See Tex. R. App. P. 42.3(c).

No party has filed a response showing grounds for continuing the appeal, and Peiskee has not notified the Court of the status of the mediation. Accordingly, the appeal is dismissed. Costs are taxed against Peiskee. See Tex. R. App. P. 42.1(d).

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed October 20, 2004

[CV06]