in the Interest of B.S.D.C. and K.R.M., Minor Children ( 2005 )

PLUMMER V REEVES NO. 07-05-0177-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 1, 2005 ______________________________

IN THE INTEREST OF B.S.D.C. AND K.R.M., MINOR CHILDREN

_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 57,952-2; HONORABLE PAMELA SIRMON, PRESIDING _______________________________

ON MOTION TO DISMISS _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Lorenza Lopez, appellant, and Katsiya Vilayouth f/n/a Phoutthaboupha Chanthavly McCuistion, appellee, by and through their attorneys, have filed a motion to dismiss this appeal because the parties have fully compromised and settled all issues in dispute and neither desire to pursue the appeal. Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss the appeal. Having dismissed the appeal at the parties' request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Brian Quinn

Chief Justice

on is limited to review of final orders and judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). To be final and appealable, a judgment must dispose of all issues and parties in the case. Id. The record shows appellee filed suit against appellant and Clear Channel Broadcasting, Inc. d/b/a KQRB 99.5 The Bear. The judgment appellant seeks to challenge in this appeal recites it "is final, disposes of all claims against Defendant, Tauton [sic], Corporation, d/b/a/ Midnight Rodeo and is not appealable." The judgment made no disposition of appellee's claims against Clear Channel Broadcasting and the record does not contain an order severing the claims against either defendant. The order denying appellant's Motion to Set Aside Default Judgment/Motion for New Trial makes no disposition of the claims against Clear Channel Broadcasting. This record fails to show either of the trial court actions appellant seeks to challenge in this appeal is final and appealable.

Additionally, appellant's brief was due no later than February 25, 2005. By letter dated March 3, 2005, we notified appellant that the due date for the brief had passed, that the brief had not been filed and no motion for extension of time to file had been received by the court. Citing Texas Rule of Appellate Procedure 38.8, the letter also notified appellant that the appeal would be subject to dismissal unless a response reasonably explaining its failure to file a brief, together with a showing that the appellee has not been significantly injured by the failure, was submitted by March 14, 2005. Appellant has not filed such a response, nor has it since submitted a brief or a motion for extension of time.

Accordingly, we dismiss the appeal for want of jurisdiction and want of prosecution. Tex. R. App. P. 38.8(a)(1); 42.3(a),(b).

James T. Campbell

Justice