                                                                                                   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. Soliz:
        The Court has directed me to request you to file an amended notice of appeal. The amended
notice of appeal 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. See Tex. R. App. P. 25.1.
        Failure to file this amended notice of appeal by April 22, 2016, may result in dismissal for
want of jurisdiction


                                                       Very truly yours,

                                                       JEFFREY D. KYLE, CLERK

                                                       BY:   Courtland Crocker
                                                             Courtland Crocker, Deputy Clerk



cc:      The Honorable Lisa David                      Mr. Arthur Smith III
Exhibit “E”
