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No. 04-15-00417-CV

In the 

Court of Appeals

For the Fourth District

San Antonio, Texas

RICHARD CECIL PETERSON AND ALMA PETERSON, 

 Appellants 

v. 

JOHN LAWRENCE JIMENEZ, M.D. AND BRIAN PHILLIP PERRY, M.D.

 Appellees 

MOTION TO DISMISS FOR FAILURE TO PROSECUTE

TO THE HONORABLE COURT OF APPEALS: 

Appellees John Lawrence Jimenez, M.D. and Brian Phillip Perry, M.D. file 

this Motion to Dismiss for Failure to Prosecute. 

I. Introduction

Appellants are Richard Cecil Peterson and Alma Peterson. Appellees are 

John Lawrence Jimenez, M.D. and Brian Phillip Perry, M.D. Appellants filed their 

notice of appeal on July 1, 2015. The clerk’s record was filed on August 5, 2015, 

and the reporter’s record was filed on August 11, 2015. Then, on August 11, 2015 

a supplemental clerk’s record was filed, and on August 19, 2015 a second 

ACCEPTED

04-15-00417-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

11/3/2015 2:33:40 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 11/3/2015 2:33:40 PM KEITH E. HOTTLE Clerk
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reporter’s record was filed. Therefore, appellants’ brief was due on September 18, 

2015. 

However, appellants failed to file their brief or a motion for extension of 

time. As a result, this Court ordered appellants to file an explanation for failing to 

file their brief by October 5, 2015. In response, appellants sought a 45-day 

extension to file their brief, providing that “Counsel for Appellants is a solo

practitioner and has been laboring under an unusually heavy schedule and needs 

additional time to prepare Appellants’ brief.” Motion for Extension (9.29.15). 

On October 1, 2015, this Court issued an order that granted appellants a 45-

day extension, extending the deadline for appellants to file their brief until 

November 2, 2015. Also in the order, this Court set strict requirements before 

appellants could seek an additional extension. (“Appellants are advised that no 

further extensions of time will be granted absent a motion that (1) demonstrates 

extraordinary circumstances justifying further delay, (2) advises the court of the 

efforts counsel has expended in preparing the brief, and (3) provides the court 

reasonable assurance that the brief will be completed and filed by the requested 

extended deadline. The court does not generally consider a heavy work schedule 

to be an extraordinary circumstance.”). However, even with the additional 45-day 

extension appellants still failed to file their brief or a timely motion for extension 

of time that meets the strict requirements set out by this Court. 
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II. Argument & Authorities

This Court has the authority to dismiss this appeal for want of prosecution 

or, in the alternative, to affirm the trial court’s judgment. TEX. R. APP. P. 38.8, 

42.3(b). Appellants’ continued failure to comply with this Court’s deadlines 

establishes a lack of willingness to prosecute this appeal, which continues to harm 

appellees. The clerk’s and reporter’s records before this Court are not extensive 

and the judgment being appealed does not present extensive issues to be addressed 

on appeal. Appellants’ claims against appellees were dismissed following 

summary judgment after the trial court held the doctrine of res ipsa loquitar did not 

apply to any claims against appellees. CR 287. Appellants’ delay in seeking 

review of the trial court’s ruling continues to harm appellees by continuing to incur 

attorney’s fee costs and the lack of finality of the judgment. Appellants continue to 

disregard this Court’s deadlines and delay the appellate process without a proper 

explanation for doing so. In light of appellants’ failure to file their brief in 

accordance with this Court’s October 1, 2015 order, appellees respectfully request 

this Court dismiss the appeal, or in the alternative, affirm the trial court’s 

judgment. See TEX. R. APP. P. 38.8, 42.3(b).

III. Prayer

For the above reasons, appellees ask the Court to grant this motion and 

dismiss this appeal or, in the alternative, to affirm the trial court’s judgment and 
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grant appellee judgment for costs. 

 BRIN & BRIN, P.C.

/s/ Lorien Whyte

Lorien Whyte

State Bar No. 24042440

6223 IH 10 West

San Antonio, Texas 78201

(210) 341-9711 telephone

(210) 341-1854 facsimile

ATTORNEYS FOR APPELLEE

JOHN LAWRENCE JIMENEZ, M.D. 

and BRIAN PHILLIP PERRY, M.D.

CERTIFICATE OF CONFERENCE

I certify that I have conferred with Richard Nunez, counsel for appellants, 

and Mr. Nunez responded that he is opposed to this Motion to Dismiss for Failure 

to Prosecute. 

/s/ Lorien Whyte

Lorien Whyte

CERTIFICATE OF SERVICE

I hereby certify that on the 3rd day of November, 2015, in accordance with 

the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure, a 

true and correct copy of the foregoing document has been forwarded to the 

following:

Richard J.W. Nunez

144 E. Price Road

Brownsville, Texas 78521

Phone: (956) 541-8502

Facsimile: (956) 541-8623

/s/ Lorien Whyte

Lorien Whyte