Benedict Emesowum v. Zone One Auto Storage and Milam Street Auto Storage Inc. D/B/A Fast Tow Wrecker

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: Benedict Emesowum v. Zone One Auto Storage and Milam
Street Auto Storage Inc. d/b/a Fast Tow Wrecker

Appellate case number: 01-14-00472-CV

Trial court case number: 1045789

Trial court: County Civil Court at Law No. 3 of Harris County

Appellant, Benedict Emesowum, has filed a “Motion to Strike Brief of Amreit
Uptown Park, LP and Motion for Order to Cease Unrequested Interference,” requesting
that we strike the appellee’s brief filed by Amreit Uptown Park, LP and that we order
Amreit Uptown Park, LP to pay appellant “all expenses incurred due to writing this
motion.” We grant the motion in part and deny in part.
After appellant’s vehicle was towed, he requested a hearing to determine whether
the towing company had probable cause to tow his vehicle. See TEX. OCC. CODE ANN.
§§ 2308.452, 2308.458 (West 2012). At the hearing, the Justice Court determined that
Amreit Uptown Park, who had been added as a defendant in the case, was not a proper
party. The Justice Court therefore ordered Zone One Auto Storage and Milam Street
Auto Storage Inc. d/b/a Fast Tow Wrecker to pay $300 in attorney’s fees to Amreit
Uptown Park.
Appellant appealed from the Justice Court’s ruling. See TEX. OCC. CODE ANN.
§ 2308.459 (West 2012). On June 2, 2014, the County Court at Law informed the
attorney for Amreit Uptown Park that Amreit Uptown Park should not have been at the
trial. The County Court at Law further found probable cause existed to tow appellant’s
vehicle.
This appeal followed. In his notice of appeal, appellant specifically stated that
“Amreit Uptown Park was wrongly included in this suit . . .” and requested that this
Court “refrain from including them [sic] in the notice for appeal to avoid unnecessary
time and expense on their part.” Further, appellant’s brief does not contest any issues
related to Amreit Uptown Park; as noted in Amreit Uptown Park’s brief, “[a]ppellant
does not make any complaint in his brief about the action of the trial court of denying
relief against Amreit Uptown Park, LP.”
No other party filed a notice of appeal. Accordingly, Amreit Uptown Park is not
adverse to appellant in this appeal and is not an appellee. See TEX. R. APP. P. 3.1(c)
(defining appellee as “a party adverse to an appellant”), 25.1(c) (“The appellate court
may not grant a party who does not file a notice of appeal more favorable relief than did
the trial court except for just cause.”).
Accordingly, we grant appellant’s motion insofar as it requests that we strike
Amreit Uptown Park’s brief, and we strike said brief. Nevertheless, we deny the motion
to the extent appellant requests that we order Amreit Uptown Park, LP to “pay to
Appellant all expenses incurred due to writing this motion.”
It is so ORDERED.

Judge’s signature: /s/ Chief Justice Sherry Radack
 Acting individually  Acting for the Court

Date: October 23, 2014