John Gargotta and Greg Willems d/b/a Maintenance Insurance Services, Inc. v. CIC Agency, Inc.--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-95-011-CV

JOHN GARGOTTA AND GREG WILLEMS d/b/a

MAINTENANCE INSURANCE SERVICES, INC.,

Appellants

v.

CIC AGENCY, INC.,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 41,053-361

MEMORANDUM OPINION

John Gargotta and Greg Willems, doing business as Maintenance Insurance Services, Inc., (Gargotta) appealed from a temporary injunction issued by the court restraining Gargotta from utilizing confidential information gained as employees of CIC Agency, Inc. and from violating a non-competition agreement between the parties. The appeal is an accelerated appeal. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(4) (Vernon Supp. 1995); Tex. R. App. P. 42(a)(1). The court signed the order granting a temporary injunction on December 19, 1994, and Gargotta filed both the transcript and the statement of facts on January 20, 1995. See Tex. R. App. P. 42(a)(3). Thus, Gargotta should have filed a brief by February 9. See id. On February 6, however, Gargotta filed a motion for an extension of time to file a brief, citing to Rule 74(n). See id. 74(n). We denied this motion because we do not have the authority to extend the time to file a brief in an accelerated appeal, as we do in an "ordinary" appeal. See City of Beverly Hills v. Guevara, 886 S.W.2d 833, 834-35 (Tex. App. Waco 1994, writ requested). No brief has been filed since.

Texas Rules of Appellate Procedure 42(a)(3), governing accelerated appeals in civil cases, provides in part:

Failure to file either the record or appellant's brief within the time specified, unless reasonably explained, shall be ground for dismissal or affirmance under Rule 60, but shall not affect the court's jurisdiction or its authority to consider material filed late.

Id. 42(a)(3). Rule 60(a)(2) provides:

If it appears to the appellate court that an appeal or writ of error is subject to dismissal for want of jurisdiction or for failure to comply with any requirements of these rules or any order of the court, the court may, on its own motion, give notice to all parties that the case will be dismissed unless the appellant or any party desiring to continue the appeal or writ of error, files with the court within ten days a response showing grounds for continuing the appeal or writ of error.

Id. 60(a)(2).

Our clerk notified the parties on April 28 that this appeal could be dismissed unless grounds for continuing were shown within ten days. See id. Neither party has responded to the notice.

Thus, we dismiss this appeal for failure to file a brief. See id. 42(a)(3), 60(a)(2).

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed

Opinion delivered and filed May 11, 1995

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