Antonio Jimenez and Mary Louise Jimenez v. Carlos Gongora

Opinion

ACCEPTED 04-15-00749-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 12/3/2015 12:58:36 PM KEITH HOTTLE CLERK

NO. 04-15-00749-CV

FILED IN IN THE FOURTH DISTRICT COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 12/3/2015 12:58:36 PM KEITH E. HOTTLE Clerk ANTONIO JIMENEZ and MARY LOUISE JIMENEZ Appellants

v.

CARLOS GONGORA Appellee

Appealed from the 45th District Court of Bexar County, Texas

APPELLEE’S MOTION TO DISMISS FOR LACK OF JURISDICTION

TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES Appellee, CARLOS GONGORA, and asks the Court to either

dismiss this appeal or affirm the trial court’s judgment and grant Appellee judgment for

costs.

A. Introduction

1. Appellants are ANTONIO JIMENEZ and MARY LOUISE JIMENEZ; Appellee

is CARLOS GONGORA.

B. Argument & Authorities

2. The Court has the authority under Texas Rule of Appellate Procedure 42.3(a) to

dismiss the appeal for lack of jurisdiction. 3. The Court should dismiss this appeal because the order being appealed is a

nonappealable interlocutory order. City of Houston v. Kilburn, 849 S.W.2d 810, 811

(Tex. 1993). The appeal is based on a summary judgment in favor of Appellee. Appellee

filed a counterclaim on March 20, 2015. The counterclaim has not been decided.

Therefore this judgment forming the basis of the appeal is interlocutory.

C. Conclusion

4. Because the judgment of which Appellants complain is not final, this Court lacks

jurisdiction to entertain this appeal. There are no statutory provisions which allow for the

appeal of this interlocutory order. See, CPRC § 51.014 (a).

D. Prayer

5. For these reasons, Appellee asks the Court to grant this motion and dismiss the

appeal and grant Appellee judgment for costs.

Respectfully submitted,

LAW OFFICES OF JAAY D. NEAL, P.C. 322 W. Woodlawn Avenue San Antonio, TX 78212 Telephone: 210/735-2233 Facsimile: 210/735-8431 jaayneal@aol.com

BY: /s/ Jaay D. Neal JAAY D. NEAL State Bar No. 14836700 Attorney for Appellee

2 CERTIFICATE OF SERVICE

I hereby certify and affirm that on this the 3rd day of December, 2015, I sent a true and correct copy of Appellee’s Motion to Dismiss for Lack of Jurisdiction to the following attorney of record:

Mr. Adam Poncio Poncio Law Offices, P.C. 5410 Fredericksburg Road, Suite 109 San Antonio, TX 78229-3550 via facsimile: (210) 212-5580

/s/ Jaay D. Neal JAAY D. NEAL