Robert Hynds v. Dale Foster

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Robert Hynds v. Dale Foster Appellate case number: 01-15-01034-CV Trial court case number: 2014-68548 Trial court: 129th District Court of Harris County On December 4, 2015, appellant, Robert Hynds, filed a notice of appeal from the trial court’s October 9, 2015 final judgment granted the motion for summary judgment by the appellee, Dale Foster, in this contract action, after Hynds had timely filed a motion for new trial. See TEX. R. APP. 26.1(a)(1). Hynds filed his appellate brief on April 19, 2016. On May 11, 2016, the Clerk of this Court granted Foster’s motion, filed on May 10, 2016, for an extension of time to file his appellee’s brief until June 20, 2016. On May 11, 2016, Foster filed a motion to dismiss this appeal, pursuant to TEX. R. APP. P. 42.3(c), because of, among other reasons, Hynds’s alleged non-compliance with certain postjudgment discovery requests and orders of the trial court regarding those requests. Hynds has filed a response asserting that Foster’s motion should be denied because, among other reasons, Rule 60(a), the predecessor to Rule 42.3(c), “does not authorize dismissal of an appeal for failure of the appellant to comply with an order of the trial court.” O’Connor v. Sam Houston Med. Hosp., Inc., 807 S.W.2d 574, 576 (Tex. 1991) (per curiam). This Court has also received Foster’s reply and supplement in support of his motion, and Hynds’s surreply. The main case Foster relies on to support his contention, that Rule 42.3(c) also includes trial court orders, is inapplicable because that case was an order, not an opinion, of this Court noting that the appellant had violated the child-custody provision of the same trial court order—a final divorce decree—from which she sought relief. See Velasco v. Ellis, No. 01–10–00073–CV, 2011 WL 2118865 , at *7 (Tex. App.—Houston [1st Dist.] May 26, 2011, order), appeal dismissed by, 2011 WL 2732778 , at *1 (Tex. App.—Houston [1st Dist.] July 14, 2011, no pet.). Here, Foster alleges that Hynds violated post-judgment orders, not the final judgment Hynds appealed from. Accordingly, Foster’s motion is denied. See O’Connor, 807 S.W.2d at 576 . Foster’s appellee’s brief remains due by June 20, 2016. It is so ORDERED. Judge’s signature: /s/ Evelyn V. Keyes  Acting individually Date: June 7, 2016