CROSSOVER: Appellate ‘Death Penalty’: 4th Court Dismisses Appeal Following Briefing Default, Providing a Tactical Win for Appellees

Memorandum Opinion Per Curiam, 04-25-00603-CV, January 28, 2026.

On appeal from the County Court at Law No. 3, Bexar County, Texas.

Synopsis

The Fourth Court of Appeals dismissed this appeal for want of prosecution after the appellant failed to file an initial brief or provide a court-ordered explanation for the delay. This ruling underscores the court’s willingness to exercise its power under Texas Rules of Appellate Procedure 38.8(a) and 42.3(c) to terminate an appeal when a party fails to comply with both procedural deadlines and specific show-cause orders.

Relevance to Family Law

In the high-stakes environment of family law, where interim orders and final decrees often involve ongoing obligations like child support or custody schedules, appellate delays can cause significant prejudice. This case highlights the procedural mechanism by which a diligent appellee can secure a “death penalty” dismissal when an appellant attempts to use the appellate process as a stall tactic without actually prosecuting the case. For family law litigators, this provides a clear path to ending meritless appeals that linger on the docket and disrupt the finality of trial court orders.

Case Summary

Fact Summary

The procedural history began when Andrew Lopez filed an appeal against Christopher G. Loredo following a judgment from the Bexar County Court at Law No. 3. The appellant’s brief was initially due on October 24, 2025. When the deadline passed without a filing, the Fourth Court of Appeals intervened. On November 21, 2025, the court issued an order demanding that the appellant file both the brief and a written response by December 1, 2025. This response was required to provide a reasonable explanation for the failure to timely file and specifically address why the appellee was not significantly injured by the delay. Despite this explicit warning and the court’s caution that failure to comply would result in dismissal, the appellant failed to submit the brief or the required explanation.

Issues Decided

The primary issue was whether the appellate court should exercise its authority to dismiss an appeal for want of prosecution when the appellant ignores both the statutory briefing deadlines and a direct court order to show cause for such failure.

Rules Applied

The court relied on Texas Rule of Appellate Procedure 38.8(a), which governs the failure of an appellant to file a brief, and Rule 42.3(c), which permits involuntary dismissal if an appellant fails to comply with a court order or a notice from the clerk requiring a response within a specified time.

Application

The Fourth Court of Appeals applied a two-step procedural analysis before dismissing the case. First, it identified the initial briefing default that occurred in October 2025. Second, rather than dismissing the appeal immediately, the court exercised judicial restraint by issuing a show-cause order. This order placed the burden on the appellant to justify the delay and prove a lack of prejudice to the appellee. Because the appellant ignored this secondary opportunity to salvage the appeal, the court determined that the failure to prosecute was absolute. The court treated the violation of Rule 42.3(c)—failure to comply with a court order—as an independent and sufficient ground for dismissal alongside the briefing default under Rule 38.8(a).

Holding

The Fourth Court of Appeals held that dismissal for want of prosecution was the appropriate remedy for the appellant’s total failure to file a brief or explain the delay. The court dismissed the appeal in its entirety.

The court further held that when an appellant is cautioned that failure to comply with a show-cause order will result in dismissal, and the appellant subsequently fails to act, the court may exercise its discretion to terminate the appeal without further notice under TRAP 42.3.

Practical Application

Family law practitioners should view this as a tactical roadmap for handling “dormant” appeals. If an appellant in a SAPCR or divorce case fails to file their brief, the appellee should not merely wait for the court to act. While the court often monitors these deadlines sua sponte, the appellee can and should move for dismissal or alert the clerk to the default. Once the court issues a show-cause order, the appellee is in a position of strength; if the appellant misses that final window, the litigation is effectively over. This is particularly useful in property division cases where an appeal might be clouding the title to assets or preventing the distribution of liquidated funds.

Checklists

Gather Your Evidence

• Track the briefing schedule immediately upon the filing of the Clerk’s and Reporter’s Records.
• Identify the exact date the appellant’s brief is due under TRAP 38.6.
• Monitor the court’s docket for any motions for extension of time (EOT); if an EOT is filed, scrutinize the “reasonable explanation” provided for potential challenges.

Securing the Dismissal

• Confirm with the appellate clerk that no brief was filed by the deadline.
• If the court does not issue a show-cause order within a reasonable window, file a Motion to Dismiss for Want of Prosecution.
• In the event the court issues a show-cause order, be prepared to file a reply arguing “significant injury” if the appellant eventually responds with a generic or weak excuse.

Avoiding the Briefing Default (For Appellants)

• Calendar all TRAP 38.6 deadlines and internal “drop-dead” dates.
• If a delay is inevitable, file a Motion for Extension of Time before the deadline expires.
• If a show-cause order is received, treat it as a “death penalty” warning—prioritize the response and the brief above all other firm business.

Citation

Lopez v. Loredo, No. 04-25-00603-CV, 2026 WL ______ (Tex. App.—San Antonio Jan. 28, 2026, no pet.) (mem. op.).

Full Opinion

Click here to view the full opinion.

Family Law Crossover

This ruling is a powerful weapon for the appellee in custody and property disputes where the appellant is merely “buying time.” In Texas, a pending appeal can sometimes be used to delay the enforcement of certain non-record-dependent orders or to create leverage in post-judgment settlement negotiations. By strictly enforcing TRAP 38.8 and 42.3, the Fourth Court reminds us that the appellate process is not a parking lot. Family law litigators can weaponize this by ensuring that an appellant who fails to strictly adhere to the briefing schedule is met with a swift motion to dismiss, thereby terminating the appellate cloud over the trial court’s judgment and allowing the client to proceed with property transfers or permanent custody arrangements without the lingering threat of reversal.

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