Richard Kirby and Julie Kirby v. Benny Fletcher

NO. 12-21-00146-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD KIRBY AND JULIE KIRBY, § APPEAL FROM THE
APPELLANTS

V. § COUNTY COURT AT LAW

BENNY FLETCHER,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for failure to comply with the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 42.3(c).
Appellants, Richard Kirby and Julie Kirby, filed a pro se notice of appeal on August 30,
2021. That same day, the Clerk of this Court notified Appellant that the notice of appeal failed
to contain the information specifically required by Texas Rule of Appellate Procedure 25.1(d)
and Section 51.017(a) of the Texas Civil Practice and Remedies Code. See TEX. R. APP. P.
25.1(d) (contents of notice); see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.017(a) (West
Supp. 2019) (notice of appeal must be served on each court reporter responsible for preparing
reporter’s record). The notice warned that, unless Appellant filed a proper notice of appeal on or
before September 9, the appeal would be referred to the Court for dismissal. Appellants did not
file a compliant notice of appeal or otherwise respond to this Court’s notice. 1
Because Appellants failed, after notice, to comply with Rule 21.5(d) and Section
51.017(a), the appeal is dismissed. See TEX. R. APP. P. 42.3(c) (on its own initiative after giving

1
Pro se litigants are held to the same standards as licensed attorneys and must comply with all applicable
rules of procedure; otherwise, pro se litigants would benefit from an unfair advantage over parties represented by
counsel. Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.—
Tyler June 21, 2017, no pet.) (mem. op.).
ten days’ notice to all parties, appellate court may dismiss appeal if appeal is subject to dismissal
because appellant failed to comply with a requirement of these rules, a court order, or a notice
from the clerk requiring a response or other action within a specified time). All pending motions
are overruled as moot.
Opinion delivered September 22, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

2
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 22, 2021

NO. 12-21-00146-CV

RICHARD KIRBY AND JULIE KIRBY,
Appellants
V.
BENNY FLETCHER,
Appellee

Appeal from the County Court at Law
of Smith County, Texas (Tr.Ct.No. 73211)

THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that the
appeal be, and the same is, hereby dismissed; and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.