                                                                                                  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




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                             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




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