Felipe N. Gomez v. Alan Braid

• Court: Court of Appeals of Texas
• Decided: February 7, 2023
• Docket: 04-22-00829-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas February 7, 2023

No. 04-22-00829-CV

Felipe N. GOMEZ, Appellant

v.

Alan BRAID, Appellee

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2022CI08302 Honorable Aaron Haas, Judge Presiding

ORDER

Appellant (plaintiff below) is Felipe N. Gomez. Appellee (defendant below) is Alan Braid. Intervenor Wolfgang P. Hirczy de Miño sought to intervene in the trial court. On December 12, 2022, the trial court signed an order dismissing both appellant’s and intervenor’s cases. For purposes of appeal, the order constituted a final, appealable judgment.

While appellant timely filed a notice of appeal, intervenor did not file a cross-notice of appeal. However, on January 18, 2023, intervenor filed in this court a “Motion to Dismiss or to Abate for Lack of Findings and Lack of Express Conclusions of Law,” and on January 27, 2023, intervenor filed in this court a “Motion to Dismiss for Mootness.”

The Texas Rules of Appellate Procedure authorize “parties” to an appeal to file a motion in this court. See TEX. R. APP. P. 10.1(a). Because intervenor did not file a cross-appeal, intervenor is not a party to this appeal. Accordingly, we may strike intervenor’s motions. See TEX. R. APP. P. 9.4(k) (authorizing court to strike documents filed not in conformity with the Rules); see also City of Laredo v. Montano, No. 04-10-00401-CV, 2011 WL 5386600, at *1 (Tex. App.—San Antonio Nov. 9, 2011, no pet.) (striking intervenors brief where intervenor did not file notice of appeal); Landon v. S & H Marketing Group, Inc., 82 S.W.3d 666, 685–86 (Tex. App.—Eastland 2002, no pet.) (party to judgment who does not file a notice of appeal may not raise an appellate issue asserting a claim for affirmative relief).

It is therefore ORDERED that intervenor Wolfgang P. Hirczy de Miño show cause in writing, no later than February 17, 2023, why his motions should not be stricken. It is so ORDERED February 7, 2023.

PER CURIAM

ATTESTED TO: ______________________________ MICHAEL A. CRUZ, Clerk of Court