Benny Risner, Australtex Investment Holdings, LLC and Houston Broad Based Community Center v. Mazen Jumaa and MJ Medical Group, LLC ( 2016 )

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Benny Risner, Australtex Investment Holdings, LLC and Houston Broad Based Community Center v. Mazen Jumaa and MJ Medical Investment Group, LLC Appellate case number: 01-15-00964-CV Trial court case number: 2015-09067 Trial court: 129th District Court of Harris County Appellants, Benny Risner, Australtex Investment Holdings, LLC and Houston Broad Based Community Center, filed a notice of appeal of the trial court’s final summary judgment signed on October 27, 2015. On December 14 and December 15, 2015, appellants’ counsel filed a “Motion to Dismiss with Prejudice and/or Nonsuit” and a “Motion to Dismiss Appeal with Prejudice and/or Nonsuit.” By each motion, counsel seeks a dismissal or non-suit of the appeal because the filing fee has not been paid and “will not be paid due to the withdrawal of Attorney Wayman L. Prince and the dismissal of appeal of this case,” and the clerk’s record “has not been received from appellants which means appellants cannot begin proceedings on any appeals prior to payment.” The motion filed on December 14, 2015, includes as an exhibit counsel’s “Motion to Withdraw with Intervention and Retention of Legal Interest,” filed in the trial court on December 10, 2015. Appellees, Mazen Jumaa and MJ Medical Investment Group, LLC, have filed a “Response and Statement of No Opposition to Appellants’ Motion to Dismiss,” stating that they do not oppose the motion to dismiss and request that the Court grant the motion to dismiss. However, on December 14, 2015, the Clerk of this Court notified appellants that the appeal was subject to dismissal unless they paid the required filing fee by January 13, 2016. See TEX. R. APP. P. 5, 42.3. The appellant record was due to be filed in this Court on December 28, 2015. On January 4, 2015, the Clerk of this Court notified the trial court clerk that the record had not been timely filed and requested that the clerk’s record be filed by February 3, 2016. See TEX. R. APP. P. 35.3(a)(2), (c). Further, Wayman L. Prince has appeared as counsel for appellants in this proceeding and has not filed in this Court a motion to withdraw from representing appellants in this Court. See TEX. R. APP. P. 6.1(a), 6.5. Accordingly, we dismiss as moot the motions to dismiss the appeal with prejudice and/or non-suit. It is so ORDERED. Judge’s signature: /s/ Terry Jennings  Acting individually  Acting for the Court Date: January 14, 2016