Jose Aguilar v. Leland Pennington, Inc., d/b/a Pennington Concrete Appeal from 141st District Court of Tarrant County (memorandum opinion)
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00407-CV JOSE AGUILAR APPELLANT AND APPELLEE V. LELAND PENNINGTON, INC., D/B/A PENNINGTON CONCRETE APPELLEE AND APPELLANT ---------FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 141-281046-15 ---------- MEMORANDUM OPINION1 AND JUDGMENT ---------Appellant Jose Aguilar filed a notice of appeal seeking to challenge several orders that the trial court signed on September 29, 2016, including the Final Judgment that granted summary judgment for Appellee Leland Pennington, Inc., d/b/a Pennington Concrete. On April 10, 2017, we notified Aguilar that his appellant’s brief had not been filed as required by rule of appellate procedure 1 See Tex. R. App. P. 47.4. 38.6(a). See Tex. R. App. P. 38.6(a). We stated that we could dismiss the appeal for want of prosecution unless he or any party desiring to continue the appeal filed with the court within ten days a motion reasonably explaining the failure to file a brief and the need for an extension. See Tex. R. App. P. 10.5(b), 38.8(a)(1), 42.3. We did not receive any response. Pennington Concrete also filed a notice of appeal, but it characterizes its cross-appeal as “conditional,” asking us to consider its issue challenging several of the trial court’s adverse rulings on its objections to Aguilar’s summaryjudgment evidence only “[t]o the extent that Aguilar may contend that this improperly admitted evidence raises a fact issue” in his appeal.2 But Aguilar did not file a brief and rely upon the summary-judgment evidence that Pennington Concrete argues should have been excluded, so its conditional cross-issue is moot. See Johnson v. Riggs, Nos. 07-12-00095-CV, 07-12-00139-CV, 07-1200509-CV, 2013 WL 1189089, at *2 (Tex. App.—Amarillo Mar. 22, 2013, no pet.) (mem. op.) (holding cross-issue moot because appellant’s appeal dismissed). Because Aguilar’s brief has not been filed, and because Pennington Concrete’s conditional cross-issue is moot, we dismiss this appeal. See Tex. R. App. P. 38.8(a), 42.3(b), 43.2(f); Johnson, 2013 WL 1189089, at *5 (dismissing 2 In other words, Pennington Concrete would not want us to sustain Aguilar’s issue challenging the trial court’s grant of summary judgment without additionally considering its cross-issue. 2 appeal after granting appellant’s motion to dismiss and holding cross-issue moot). /s/ Bill Meier BILL MEIER JUSTICE PANEL: MEIER, KERR, and PITTMAN, JJ. DELIVERED: September 21, 2017 3
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