Jose A. Soliz v. Home Depot, USA, Inc.
This text of Jose A. Soliz v. Home Depot, USA, Inc. (Jose A. Soliz v. Home Depot, USA, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 03-16-00248-cv 11229657 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/20/2016 1:26:06 PM JEFFREY D. KYLE CLERK No. 03-16-00248-CV
FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT COURT OF APPEALS 6/20/2016 1:26:06 PM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk
JOSE A. SOLIZ,
Appellant,
v.
HOME DEPOT U.S.A., INC.,
Appellee.
Appeal from the 26TH Judicial District Court of Williamson County, Texas
APPELLEE HOME DEPOT U.S.A., INC.’S MOTION TO DISMISS FOR LACK OF JURISDICTION
TO THE HONORABLE COURT:
Comes now Appellee, Home Depot U.S.A., Inc. (“Home Depot”), and files this
Motion to Dismiss for Lack of Jurisdiction, and in support thereof, would respectfully
show unto the Court as follows:
GROUNDS FOR MOTION
Home Depot respectfully requests that this appeal be dismissed because Appellant
Jose A. Soliz (“Appellant”) failed to timely file his Notice of Appeal in compliance with
Rule 26.1 of the Texas Rules of Appellate Procedure, failed to comply with Rule 25.1(d)
APPELLEE HOME DEPOT U.S.A., INC.’S MOTION TO DISMISS PAGE 1 with respect to the required contents of a Notice of Appeal, failed to pay the required
appellate filing fees as directed by this Court, and failed to file an Amended Notice of
Appeal as directed by this Court.
ARGUMENT AND AUTHORITIES
Appellant appeals from the Order of Dismissal entered by the 26th Judicial Court
in Williamson County, Texas in favor of Home Depot on March 10, 2016. A true and
correct copy of this Order is attached hereto as Exhibit “A.” Under Tex. R. App. P. 26.1
and 4.1(a), Appellant’s Notice of Appeal was required to be filed with the District Clerk
with the Court of Appeals by April 11, 2016. Rule 25.1(d) further requires that this
notice must: (1) identify the trial court and state the case’s trial court number and style;
(2) state the date of the judgment or order appealed from; (3) state that the party desires
to appeal; (4) state the court to which the appeal is taken unless the appeal is to either the
First or Fourteenth Court of Appeals, in which case the notice must state that the appeal
is to either of those courts; and (5) state the name of each party filing the notice.
Appellant did not file his Notice of Appeal until April 13, 2016—two days after
his deadline to perfect his appeal had passed. A true and correct copy of Appellant’s
Notice of Appeal is attached hereto as Exhibit “B.” In addition to being untimely,
Plaintiff’s Notice of Appeal did not fulfill any of the requirements set forth by Rule
25.1(d).
On April 14, 2016, the Clerk of the Court of Appeals sent two letters to Appellant.
The first letter stated that the Appellant had until April 22, 2016 to submit the $205.00
filing fee and docketing statement under Tex. R. App. P. 5 and 32.1. A true and correct
APPELLEE HOME DEPOT U.S.A., INC.’S MOTION TO DISMISS PAGE 2 copy of this letter is attached hereto as Exhibit “C.” The second letter informed
Appellant that his Notice of Appeal was defective under Rule 25.1, and he was required
to file an amended notice by April 22, 2016 correcting these deficiencies. The Clerk
stated that “failure to file this amended notice of appeal by April 22, 2016 may result in
dismissal for want of jurisdiction.” A true and correct copy of this letter is attached
hereto as Exhibit “D.”
Appellant did not file any of the motions listed in Rule 26.1 which would have
worked to extend the deadline for Appellant to file his Notice of Appeal. A copy of the
District Court’s docket sheet is attached hereto as Exhibit “E,” which establishes that no
post-trial motions were filed which would have operated to extend Appellant’s deadline
to file his Notice of Appeal.
As Appellant’s Notice of Appeal was not timely filed, this case should be
dismissed. In addition, Appellant failed to file an Amended Notice of Appeal in
compliance with this Court’s instruction or submitted a Notice that complies with Rule
25.1(d). Nor has Appellant issued payment for any of the required appellate filing fees in
compliance with the Court’s instruction. This Appeal, therefore, should be dismissed for
lack of jurisdiction.
APPELLEE HOME DEPOT U.S.A., INC.’S MOTION TO DISMISS PAGE 3 Respectfully submitted,
By: /s/ Arthur K. Smith Arthur K. Smith State Bar No. 18534100
LAW OFFICES OF ARTHUR K. SMITH, A PROFESSIONAL CORPORATION 507 Prestige Circle Allen, Texas 75002-3438 Telephone: (469) 519-2500 Facsimile: (469) 519-2555 E-mail: asmith@aksmithlaw.com
ATTORNEYS FOR APPELLEE HOME DEPOT U.S.A., INC.
CERTIFICATE OF CONFERENCE
The undersigned attorney for Appellee Home Depot U.S.A., Inc. certifies that I have conferred with Appellant, Jose Soliz, regarding the relief requested in Appellee Home Depot U.S.A., Inc.’s Motion to Dismiss for Lack of Jurisdiction filed with the Court on June 20, 2016, and Appellant is opposed to the relief requested in said Motion.
/s/ Sean W. Fleming Sean W. Fleming
APPELLEE HOME DEPOT U.S.A., INC.’S MOTION TO DISMISS PAGE 4 CERTIFICATE OF SERVICE
As required by the Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I certify that I have served this document on all other parties which are listed below on June 20, 2016 as follows:
Mr. Jose A. Soliz 1317 Sunny Meadows Loop Georgetown, TX 78626 Appellant, pro se By Certified Mail, Return Receipt Requested
By: /s/ Arthur K. Smith Arthur K. Smith
Date: 06/20/2016
APPELLEE HOME DEPOT U.S.A., INC.’S MOTION TO DISMISS PAGE 5 Exhibit “A” Exhibit “B” Exhibit “C” FILE COPY
COURT OF APPEALS THIRD DISTRICT OF TEXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733
JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE April 14, 2016
Mr. Jose A. Soliz Mr. Arthur Smith III 1317 Sunny Meadows Loop Law Offices of Arthur K. Smith Georgetown, TX 78626 507 Prestige Cir * DELIVERED VIA E-MAIL * Allen, TX 75002-3438 * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 03-16-00248-CV Trial Court Case Number: 15-0400-C26
Style: Jose A. Soliz v. Home Depot, USA, Inc.
Dear Counsel and Mr. Soliz: The Court has been advised that appellant has given notice of appeal. The cause in this Court will bear the number and style shown above. Appellant is requested to forward the $205.00 filing fee and a docketing statement to this Court on or before April 22, 2016. See Tex. R. App. P. 5, 32.1. If appellant has not already done so, he must make a written request to the clerk and the court reporter and make arrangements for payment of the record within ten days of the receipt of this notice. See Tex. R. App. P. 34.6(b)(1).
Very truly yours,
JEFFREY D. KYLE, CLERK
BY: Courtland Crocker Courtland Crocker, Deputy Clerk
cc: The Honorable Lisa David Ms. Cindy Kocher Exhibit “D” FILE COPY
COURT OF APPEALS THIRD DISTRICT OF TEXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733
JEFF L. ROSE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK DAVID PURYEAR, JUSTICE BOB PEMBERTON, JUSTICE MELISSA GOODWIN, JUSTICE SCOTT K. FIELD, JUSTICE CINDY OLSON BOURLAND, JUSTICE April 14, 2016
Mr. Jose A. Soliz 1317 Sunny Meadows Loop Georgetown, TX 78626 * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 03-16-00248-CV Trial Court Case Number: 15-0400-C26 Style: Jose A. Soliz v. Home Depot, USA, Inc.
Dear Mr.
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