Reginald K. Nix v. Texas Workers' Compensation Insurance Fund--Appeal from 250th District Court of Travis County

CV5-609 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00609-CV
Reginald K. Nix, Appellant
v.
Texas Workers' Compensation Insurance Fund, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 94-10100, HONORABLE PETE LOWRY, JUDGE PRESIDING

Appellant Reginald K. Nix (1) did not timely tender either a brief or motion for extension of time to file a brief. In response to a letter from the Clerk of the Court notifying him that his brief was late and the appeal subject to dismissal for want of prosecution, appellant tendered a motion for extension of time to file a brief and then tendered a brief that exceeded fifty pages. Tex. R. App. P. 74(h). On January 11, 1996, the Clerk's office informed appellant that his brief had been received, and that he needed to file a motion requesting that he be allowed to file a brief of over fifty pages. As of February 8, 1996, appellant had not responded.

Accordingly, by an order issued February 14, 1996, the Court ordered that appellant tender an amended brief that complied with the rules of appellate procedure within ten days of the date of the order. To date, appellant has not responded.

Appellee has consistently contended that this appeal was pursued for reasons of delay only, and has moved that the Court file its brief and, under Rule 74, affirm the judgment below. Tex. R. App. P. 74(m). In the alternative, it moved to dismiss the appeal for want of prosecution. Finally, appellee moved to increase damages by 10% for delay. Tex. R. App. P. 84. For the reasons stated below, we will grant appellee's motion to dismiss the appeal for want of prosecution and its motion to increase damages. Tex. R. App. P. 74(l)(1); Tex. R. App. P. 84.

 
Factors in Assessing Rule 84 Sanctions

One factor that has been considered in determining whether an appeal was taken for purposes of delay only has been whether the brief was well-researched and raised arguable points of error. See Hennigan v. Hennigan, 677 S.W.2d 495, 496 (Tex. 1984). Appellant's tendered brief, in addition to being over fifty pages, has numerous other problems. (2) It does not contain a table of authorities. Tex. R. App. P. 74(b). Scattered throughout the brief are references such as [S.F. ] and cases cited as: v. , S.W.2d . Two points of error are never re-stated or argued in the body of the brief.

Further, appellant checked out the transcript in this cause and did not return it when due. On December 21, 1995, the Clerk's office contacted appellant concerning the return of the transcript. To date, we have received no response. Without a transcript, any review the Court could attempt of the merits of the cause would be substantially hindered.

Appellant had to be prompted to file his brief in the first place, then was given an extension of time to file the already over-due brief. The brief tendered to the Court is essentially a rough draft. Appellant was given the opportunity, through this Court's order, to file a proper brief. His actions before this Court suggest a litigant who thinks very little of his chances for reversal and an appeal taken only for delay.

We dismiss the following pending motions of appellee: (1) the motion for leave to file its brief; (2) the motion for leave to file a supplemental brief; (3) the motion to affirm the judgment below. We grant appellee's motion to increase damages by 10% and grant appellee's motion to dismiss for want of prosecution.

 

Before Justices Powers, Jones and B. A. Smith

Dismissed for Want of Prosecution on Appellee's Motion

Filed: April 3, 1996

Do Not Publish

1. Mr. Nix is an attorney representing himself. Mr. Nix represented a workers' compensation claimant who recovered from a third party. The cause from which Mr. Nix appeals is a conversion action against him by the workers' compensation carrier to recover its lien.

2. We note that the file in the cause shows a copy of a letter from appellee pointing out that the brief sent to him appears to be a draft, and requesting that the copy tendered to the Court, if different, be sent to him.