the City of Houston v. Nikolette Ledesma and Elsa Estrada ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: City of Houston v. Nikolette Ledesma and Elsa Estrada
Appellate case number: 01-22-00377-CV
Trial court case number: 2017-84026
Trial court: 270th District Court of Harris County
Appellant, the City of Houston, appealed from the trial court’s order denying its
“Plea to the Jurisdiction and Motion for Leave to Withdraw Defendant’s Admission.”
Appellant filed its brief on August 31, 2022. Accordingly, the brief of appellees, Nikolette
Ledesma and Else Estrada, was initially due on September 21, 2022. However, on
September 15, 2022, appellees requested an extension of the deadline to file their brief,
which was granted by the Court, extending their deadline for filing an appellees’ brief to
November 21, 2022.
On November 17, 2022, appellees filed an “Opposed Motion to Extend Time to File
Appellees’ Brief.” In the November 17, 2022 motion, appellees stated that the basis for
the requested second extension of the deadline to file an appellees’ brief was due to a
medical condition experienced counsel for appellees. Appellees requested that the deadline
to file their appellees’ brief be extended to November 30, 2022. The motion further stated
that appellees would “not seek any further extensions.”
On November 21, 2022, appellees filed two motions. First, appellees filed a
“Motion to Dismiss Frivolous Appeal Pursuant to Texas Rule of Appellate Procedure 45.”
Appellees further filed an “Opposed Motion to Extend Time to File Appellees’ Brief Until
a Ruling is Made on the Motion to Dismiss for Frivolous Appeal Pursuant to Texas Rule
of Appellate Procedure 45.” In their motion to dismiss, appellees request that this Court
dismiss the City’s appeal as it “is not only frivolous, but . . . is in direct violation with this
Honorable Court’s opinion and mandate” in appellate case number 01-19-00034-CV. See
Ledesma v. City of Houston, 623 S.W.3d 840, 850 (Tex. App.—Houston [1st Dist.] 2020,
pet. denied) (reversing trial court’s order granting City’s motion to dismiss for lack of
subject-matter jurisdiction over Ledesma and Estrada’s claims because City “judicially
admitted that [employee] was acting within the scope of her employment” at time of
motor-vehicle collision forming subject of lawsuit).
To this end, appellees assert that the Court should dismiss this appeal “and order
sanctions to deter the City from abusing the [appellate] process.” In their motions,
appellees assert several merits-based arguments and state that this Court should dismiss the
appeal and award sanctions. See TEX. R. APP. P. 45 (allowing appellate court to award
sanctions where it “determines that an appeal is frivolous”).
However, rule 45 does not provide this Court with authority, and appellees have not
cited to any authority, to dismiss an appeal prior to its consideration of the merits.
Dismissal of civil appeals are governed by Texas Rule of Appellate Procedure 42. Pursuant
to rule 42, an appellate court may dismiss an appeal where an appellant, or the parties
jointly, voluntarily request the appeal be dismissed. See TEX. R. APP. P. 42.1(a). An
appellate court may also dismiss an appeal where it concludes that the appeal is subject to
dismissal for: (a) lack of jurisdiction, (b) want of prosecution, or (c) because appellant has
failed to comply with a requirement of these rules, a court order, or notice from the clerk
of the appellate court requiring a response or other action within a specified time. See TEX.
R. APP. P. 42.3.
Here, the City of Houston, as appellant, has not voluntarily requested to dismiss its
appeal. Further, none of the bases outlined by rule 42.3 have been established by appellees.
Accordingly, appellees motion to dismiss is denied.
Appellees’ motions for extension of the deadline to file their appellees’ brief are
granted. Appellees’ brief is due to be filed within fourteen days of the date of this order.
Absent extraordinary circumstances, no additional extensions will be granted.
It is so ORDERED.
Judge’s signature: _____/s/ April Farris________
 Acting individually  Acting for the Court
Date: __December 6, 2022___