Wells Fargo Bank, N.A. v. Express Limousines, Inc. N/K/A Groovy Automotive I, Inc., and Charles Delmonico

• Court: Court of Appeals of Texas
• Decided: February 6, 2019
• Docket: 03-19-00023-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00023-CV

Wells Fargo Bank, N.A., Appellant

v.

Express Limousines, Inc. n/k/a Groovy Automotive I, Inc., and Charles Delmonico, Appellees

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-15-001520, THE HONORABLE DON R. BURGESS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Wells Fargo Bank, N.A. has filed a motion to dismiss this appeal.

Appellees have filed a notice of opposition to the motion to dismiss appeal. They explain that

the trial court’s order at issue in this appeal is an order granting a motion to dismiss for want of

prosecution without prejudice. Appellees believe that the statute of limitations has expired as to

Wells Fargo’s claims in the underlying proceeding making the order granting the dismissal

effectively with prejudice. Because Wells Fargo has filed a subsequent suit based on the same

claims, appellees argue that they “cannot agree to the Motion to Dismiss as such could be

construed or argued to be an admission the Order is not prejudicial in effect.”

Appellees, however, have not requested affirmative relief in this appeal. See Tex.

R. App. P. 42.1(a) (authorizing appellate court to dismiss appeal on motion of appellant “unless

disposition would prevent a party from seeking relief to which it would otherwise be entitled”); Devoll v. Depaz, No. 03-12-00668-CV, 2013 Tex. App. LEXIS 6767, at *1–2 (Tex. App.—

Austin June 4, 2013, no pet.) (mem. op.) (granting appellant’s opposed motion to dismiss appeal,

observing that appellee had not requested affirmative relief, and explaining that appellee had not

cited, and court had not found, authority “which would support the contention that a party who

prevailed at trial has a right to have the correctness of that judgment determined by an appellate

court”). We grant appellant’s motion and dismiss the appeal.

__________________________________________ Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Triana

Dismissed on Appellant’s Motion

Filed: February 6, 2019