Memorandum Opinion Per Curiam, 14-25-00694-CV, February 03, 2026.
Synopsis
The Fourteenth Court of Appeals dismissed this appeal for want of prosecution after the appellant failed to file an appellate brief or respond to a formal 10-day warning notice. This ruling reinforces the court’s authority under Texas Rule of Appellate Procedure 42.3(b) to summarily terminate appeals when counsel or parties ignore mandatory briefing deadlines and subsequent show-cause orders.
Relevance to Family Law
In the high-stakes environment of Texas Family Law, where possession schedules, property divisions, and child support obligations often hang in the balance during the pendency of an appeal, the “10-day death notice” is a critical procedural hurdle. While this specific case originated from a civil dispute involving an estate and a commercial entity, the procedural mechanism—Rule 42.3(b)—is applied with equal clinical precision in divorce and custody appeals. For family law practitioners, this case serves as a stark reminder that even a meritorious claim regarding the “best interest of the child” or a “just and right division” will never be heard if the briefing deadlines are treated as suggestions rather than strict jurisdictional mandates.
Case Summary
Fact Summary
The procedural history of this appeal followed a standard trajectory toward a premature end. The trial court signed the final judgment on May 22, 2025. Following the perfection of the appeal, the clerk’s record was filed on September 23, 2025. Notably, the court reporter informed the Court of Appeals that no record was taken during the trial court proceedings. Under the Texas Rules of Appellate Procedure, the appellant’s brief was due shortly after the filing of the clerk’s record. However, months passed without the appellant filing a brief or a motion for extension of time. On January 6, 2026, the Fourteenth Court of Appeals issued a formal notice to the appellant, warning that the appeal was subject to dismissal for want of prosecution unless a brief was filed within 10 days. The appellant failed to respond to this notice or provide any justification for the delay.
Issues Decided
The central issue was whether the appellate court should exercise its discretion to dismiss an appeal for want of prosecution when an appellant fails to file a brief and subsequently fails to respond to a court-issued notice under TRAP 42.3(b).
Rules Applied
The court applied Texas Rule of Appellate Procedure 42.3(b), which permits an appellate court, on its own motion after giving ten days’ notice, to dismiss an appeal because the appellant has failed to comply with a requirement of the rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.
Application
The court’s application of the law was straightforward and purely procedural. Once the clerk’s record was filed in September 2025, the appellant’s briefing clock began to run. The total absence of activity for several months triggered the court’s internal monitoring systems. By issuing the January 6th notice, the court provided the appellant with the mandatory “due process” window required by Rule 42.3. This “10-day notice” is colloquially known among appellate specialists as the “death notice” because it represents the final opportunity to save an appeal. Because the appellant neither filed the brief nor requested an extension within that 10-day grace period, the court determined that the appellant had effectively abandoned the appeal, necessitating dismissal for want of prosecution.
Holding
The court held that the appeal must be dismissed. The dismissal was predicated on the appellant’s failure to prosecute the case by neglecting the briefing deadlines and ignoring the court’s subsequent warning.
The court further noted that the dismissal was ordered per curiam, emphasizing that the failure to comply with basic appellate procedure leaves the panel with no alternative but to remove the case from its docket without reaching the merits of the underlying dispute.
Practical Application
For family law litigators, the takeaway is one of defensive and offensive strategy. If you are the appellant in a complex property or custody case, the filing of the clerk’s record is the “starting gun.” You must be prepared to seek extensions early and often if the record is voluminous. Conversely, if you represent the appellee, you should monitor the appellate docket closely. Once the appellant misses their deadline, do not necessarily rush to file a motion to dismiss; often, the court’s clerk will issue the 10-day notice sua sponte. If the appellant fails to respond to that notice, the case is effectively over, saving your client the legal fees associated with briefing the merits.
Checklists
Managing the Appellant’s Deadline
- Track the Record: Confirm the date the Clerk’s Record and Reporter’s Record are filed; the brief is due 30 days later (or 20 days in accelerated appeals).
- Calendar the Warning: If a 10-day notice is received under Rule 42.3, treat it as an absolute deadline that overrides all other trial court obligations.
- Motion for Extension: Always file a motion for extension before the 10-day notice is issued to maintain credibility with the justices.
Appellee’s Dismissal Strategy
- Monitor the Docket: Check the Court of Appeals’ website every 14 days to see if the appellant has missed the filing window.
- Resist Early Briefing: Do not file an Appellee’s Brief until the Appellant’s Brief is actually filed and accepted; if the appeal is dismissed under 42.3, your client avoids unnecessary costs.
- Verify the Record: If the court reporter informs the court that “no record was taken” (as seen in this case), the appellant’s ability to show error is already severely compromised; use this to pressure a settlement or push for dismissal.
Citation
McArthur v. Concord Houston JFK Blvd Hotel II LLC, No. 14-25-00694-CV, 2026 Tex. App. LEXIS ___ (Tex. App.—Houston [14th Dist.] Feb. 3, 2026, no pet.) (mem. op.).
Full Opinion
Family Law Crossover
This ruling can be weaponized in a Texas divorce or custody case to achieve a final, unappealable judgment without the risk of a reversal on the merits. In family law, appeals are often filed by a disgruntled spouse as a delay tactic to avoid the sale of a house or the commencement of a new possession schedule. By strictly monitoring the TRAP 42.3(b) timeline, an appellee’s counsel can allow the appellant to “trip” over their own procedural negligence. If the appellant misses the 10-day window following a court notice, the dismissal is for “want of prosecution,” which is almost impossible to overturn via a Motion for Rehearing. This provides the appellee with the ultimate “clean win”—ending the litigation entirely based on the appellant’s failure to follow the rules, thereby making the trial court’s decree final and enforceable.
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