Opinion
01-23-00374-CV
02-01-2024
Aldo Montemayor v. Lizeth Aracely Montemayor
246th District Court of Harris County Trial court case No: 2020-83349
ORDER
April Farris, Judge
Appellant, Aldo Montemayor, filed a notice of appeal from the trial court's April 17, 2023 Final Decree of Divorce. Appellant filed his brief on December 18, 2023, making the brief of appellee, Lizeth Aracely Montemayor, due on or before January 17, 2024. See Tex. R. App. P. 38.6(b). No appellee's brief was filed by the deadline.
However, on January 25, 2024, appellee, acting pro se, filed two documents. First, appellee filed a "Notice of Appearance as Pro Se Litigant," advising the Court that she "will represent herself and . . . enter[s] [her] appearance with the Court as a pro se litigant." Appellee also filed a "Motion to Extend Time to File Appellee's [] Brief," requesting that the deadline for filing her brief be extended to March 2, 2024.
The two January 25, 2024 filings, filed by appellee pro se, were the first documents filed by, or on behalf of, appellee in this appeal. However, the appellate record reflects that appellee was represented by counsel in the trial court. Because no appearance had been made by counsel, or appellee pro se, in this appeal, the Court sent all communications for this appeal to appellee's trial counsel. See Tex. R. App. P. 6.3(b) (appellate court required to send "[a]ny notice, copies of documents filed in an appellate court, or other communication . . . to a party's lead counsel in the trial court if: (1) that party was represented by counsel in the trial court; (2) lead counsel on appeal has not yet been designated for that party; and (3) lead counsel in the trial court has not filed a nonrepresentation notice or been allowed to withdraw"). The Court's records further reflects that appellee's trial counsel has not filed a nonrepresentation notice or motion to withdraw as counsel.
Accordingly, we direct appellee's lead trial counsel to file either a notice of nonrepresentation or motion to withdraw with the Court within fifteen days of the date of this order. See Tex. R. App. P. 6.4. We further direct the Clerk of this Court to note that appellee is appearing pro se and that all correspondence, filings, or other communications regarding this appeal are to be sent to appellee. See Tex. R. App. P. 6.1(b) ("Unless another attorney is designated, lead counsel for a party other than an appellant is the attorney whose signature first appears on the first document filed in the appellate court on that party's behalf.").
We further deny appellee's pro se motion to extend the deadline for filing an appellee's brief because it fails to comply with the Texas Rules of Appellate Procedure. See Tex. R. App. P. 9.5(d) (all filed documents "must contain a proof of service in the form of either an acknowledgment of service by the person served or a certificate of service"), (e) (setting forth requirements for certificate of service), 10.1(a)(5) (all motions filed in appellate courts "must . . . contain or be accompanied by a certificate stating that the filing party conferred, or made a reasonable attempt to confer, with all other parties about the merits of the motion and whether those parties oppose the motion").
Appellee is directed to, within ten days of the date of this order, either file an appellee's brief, or present for consideration by the Court a motion for extension of time to file her brief that complies with the Texas Rules of Appellate Procedure. Failure to comply with this order may result in the Court setting the case "at-issue" and considering the case without an appellee's brief. See Tex. R. App. P. 10.5(b) (setting forth requirements for motions to extend time to file brief), 38.6(d).
It is so ORDERED.