Raul S. Cantu v. George Mozakis--Appeal from 408th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00577-CV

Raul S. CANTU,

Appellant

v.

George MOZAKIS,

Appellee

From the 408th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-10577

Honorable Patrick J. Boone, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: February 18, 2004

DISMISSED

On December 18, 2003, appellee filed a request for sanctions, which is hereby DENIED. On January 5, 2004, appellant's counsel, Mr. Richard Silvas, filed a motion to dismiss this appeal, which appellee does not oppose. However, appellant requests that costs be assessed against the party who incurred them, while appellee requests an award of attorney's fees on appeal.

On January 20, 2004, appellant's former attorney, Mr. John D. Herrick, filed a Motion to Substitute Counsel and a Motion to Withdraw Appellant's Prior Motion to Dismiss, or In the Alternative, Reconsider and Deny. Mr. Silvas has not filed a motion to withdraw or any response to Mr. Herrick's motions. Mr. Herrick's motion to substitute does not comply with Texas Rule of Appellate Procedure 6.5, and there is no indication in his motion that he served a copy of the motion on Mr. Silvas. Accordingly, we DENY Mr. Herrick's Motion to Substitute Counsel. Because we recognize only Mr. Silvas as the attorney representing appellant on appeal, we DENY Mr. Herrick's Motion to Withdraw Appellant's Prior Motion to Dismiss, or In the Alternative, Reconsider and Deny. For the same reason, we also DENY Mr. Herrick's February 2, 2004 Motion for Extension of Time to File Brief. We note that none of Mr. Herrick's motions comply with Texas Rule of Appellate Procedure 10.1(a)(5) (requiring certificate of conference).

We grant the motion to dismiss and DISMISS THE APPEAL. See Tex. R. App. P. 42.1(a)(1). We DENY that portion of appellant's motion to dismiss in which he requests that costs be assessed against the party who incurred them. Costs are assessed against appellant. We decline to address appellee's request that he be awarded attorney's fees on appeal in the amount of $2,670.00 because the trial court's judgment included an award of attorney's fees in the event of an appeal.

PER CURIAM