Frank Custable, Jr., Individually, and Pine Services, Inc. v. Primary Business Systems, LLC--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00348-CV

Frank CUSTABLE, Jr., Individually, and Pine Services, Inc.,

Appellants

v.

PRIMARY BUSINESS SYSTEMS, LLC,

Appellee

From the 285th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-19857

Honorable Andy Mireles, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 16, 2005

DISMISSED FOR WANT OF PROSECUTION

This appeal was abated for mediation on July 26, 2004. By letter dated September 7, 2004, the mediator informed the court that the parties had settled. The abatement was extended several times to enable the parties time to obtain the approval of the Securities and Exchange Commission. On July 18, 2005, appellants attorney filed a motion to withdraw as counsel, stating that the appellees had declared the settlement agreement in default.

On July 20, 2005, this court granted the motion to withdraw and reinstated the appeal on the court s docket. This court also ordered that appellants file their brief no later than August 19, 2005. On September 7, 2005, this court issued an order, noting that the appellants brief had not been filed and ordering appellants to show cause in writing why this appeal should not be dismissed for want of prosecution. The September 7, 2005 order was returned to this court because appellants had moved and left no forwarding address. After the court obtained a new address for the appellants, the court issued another order on September 30, 2005, noting that the appellants brief had not been filed and ordering appellants to show cause in writing why this appeal should not be dismissed for want of prosecution. Appellants response was due to be filed on October 17, 2005.

On October 14, 2005, appellants faxed a memo to the court requesting an additional fifteen days while the parties finish finalizing the agreement. On October 18, 2005, the court issued an order granting the extension to November 1, 2005. The order noted that the agreement the appellants sought to finalize was likely the same agreement for which the abatement of this appeal was previously extended for a period of approximately ten months. The order further noted that the appeal had been pending on this court s docket for almost one and one-half years. Finally, the court noted that no additional extensions would be granted, and the appeal would be dismissed for want of prosecution if appellants did not file their brief by November 1, 2005. Because the appellants failed to file their brief by the deadline, this appeal is dismissed for want of prosecution. See Tex. R. App. P. 38.8(a); 42.3. Costs of the appeal are taxed against appellants.

PER CURIAM