Opinion
No. 04-16-00734-CV
05-30-2017
Michael A. SALAZAR, Appellant v. HEB GROCERY COMPANY, LP and Wal-Mart #1198, Appellees
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-11032
Honorable John D. Gabriel, Jr., Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
This is an appeal from the trial court's judgment dismissing Michael A. Salazar's claims pursuant to Rule 91a of the Texas Rules of Civil Procedure. Appellant has filed a motion asking us to submit a dispute about the reporter's record to the trial court for resolution and a motion for extension of time to file his brief. We deny appellant's motions.
Appellant contends that, due to "tampering," the record of the Rule 91a hearing does not accurately reflect the arguments made by appellant and by counsel for HEB. He asks us to submit the dispute to the trial court for resolution. See TEX. R. APP. P. 34.6(e)(3) (if dispute about inaccuracy in reporter's record arises after record has been filed in appellate court, we "may submit the dispute to the trial court for resolution").
The trial court's ruling on a Rule 91a motion is based solely on the pleadings. TEX. R. CIV. P. 91a.6. The trial court is not required to conduct an oral hearing on the motion and may not consider any evidence in ruling on the motion. Id. We review the trial court's ruling de novo, based solely on the allegations in the live petition and any attachments thereto. Vasquez v. Legend Natural Gas III, LP, 492 S.W.3d 448, 450-51 (Tex. App.—San Antonio 2016, pet. denied). Because the content of the parties' oral arguments to the trial court at any hearing on the Rule 91a motion plays no role in our review of the trial court's ruling on the motion, the dispute about the accuracy of the reporter's record is not material to any issue before this court. We therefore deny appellant's motion to remand the case to the trial court for a Rule 34.6(d)(3) hearing.
Appellant's brief was originally due March 3, 2017; however, we have granted appellant several extensions of time to file the brief. On May 4, 2017, we ordered appellant to file the brief by June 1, and advised appellant that the appeal may be dismissed without further notice if the brief were not filed by that date. Nevertheless, appellant has filed a motion asking for an additional 30 days to file his brief. We deny the motion. We order Michael A. Salazar to file his appellant's brief by June 9, 2017. If appellant fails to file a brief and the written response by the date ordered, we will dismiss the appeal. See Tex. R. App. P. 42.3(c), 38.8(a).
/s/_________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 30th day of May, 2017.
/s/_________
Keith E. Hottle
Clerk of Court