Mary Ann Castro v. Manuel Castro ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
May 12, 2015
No. 04-14-00785-CV
Mary Ann CASTRO,
Appellant
v.
Manuel CASTRO,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-15957
Honorable Janet P. Littlejohn, Judge Presiding
ORDER
On May 8, 2015, appellee’s counsel, Joseph P. Appelt filed a “Notice of Motion for
Withdrawal of Counsel.” In the motion, counsel asks this court for permission to withdraw from
his appellate representation of appellee, Manuel G. Castro. We DENY counsel’s motion because
it does not comply with Rule 6.5 of the Texas Rules of Appellate Procedure.
Rule 6.5 states that an appellate may permit an attorney to withdraw from representing a
party in the appellate court. TEX. R. APP. P. 6.5. However, any motion to withdraw must
contain, among other things, a list of current deadlines and setting in the appellate court. Id.
Counsel’s motion appears to have been written as if this case were still in the trial court phase,
stating: “There is no setting pending in this case. Both sides have served discovery requests to
the other. There have not been any oral depositions in this case.” However, this matter is now on
appeal and there are pending deadlines. Specifically, appellee’s brief was due to be filed in this
court on April 29, 2015, but was not filed. When counsel failed to file the brief, this court issued
a letter pursuant to Rule 38.8 of the Texas Rules of Appellate Procedure, which requires a
response from appellee on or before May 18, 2015. Thus, counsel has not complied with
subsection (a)(1) of Rule 6.5. See id.
Additionally, Rule 6.5 requires that a motion to withdraw be delivered to the client in
person or mailed — both by certified and first class mail — as the client’s last known address.
Id. at R. 6.5(b). In the certificate of service, counsel states the motion was delivered to “each
attorney of record or party in accordance with the Texas Rules of Civil Procedure.” (emphasis
added) Thus, it does not appear counsel served the motion in accordance with subsection (b) of
Rule 6.5.
Based on the foregoing, we DENY counsel’s motion to withdraw. Counsel is reminded
that a response to this court’s 38.8 letter is due May 18, 2015. Counsel is further reminded that
appellee’s brief, as stated in our letter, is past due.
We order the clerk of this court to serve a copy of this order on appellant, appellee, and
Mr. Joseph P. Appelt.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 12th day of May, 2015.
___________________________________
Keith E. Hottle
Clerk of Court