The opinion
ACCEPTED
03-15-00071-CV
4595760
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/23/2015 10:43:17 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00071-CV FILED IN
IN THE 3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD COURT OF APPEALS
3/23/2015 10:43:17 AM
AUSTIN, TEXAS JEFFREY D. KYLE
____________________________________________________________
Clerk
BECKY, LTD.,
Appellant
V.
MILESTONE COMMUNITY BUILDERS, LLC, THE CITY OF CEDAR PARK,
STEPHEN THOMAS, MATT POWELL, MITCH FULLER, LYLE GRIMES,
LOWELL MOORE, JON LUX, AND DON TRACY,
Appellees
_____________________________________________________________
ON APPEAL FROM THE
126TH JUDICIAL DISTRICT COURT,
TRAVIS COUNTY, TEXAS
______________________________________________________________
APPELLANT’S MOTION FOR
VOLUNTARY DISMISSAL OF APPEAL
______________________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellant, Becky, Ltd, files Appellant’s Motion for Voluntary Dismissal of
Appeal pursuant to TEX. R. APP. P. 42.1(a), and would respectfully show the Court
as follows:
Becky filed a notice of appeal on January 30, 2015, intending to appeal what
it believed to be a final judgment. It later came to Becky’s attention that the
judgment appealed from was not final since it did not dispose of all parties and all
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claims. Becky then filed a Motion to Abate, asking for abatement in anticipation
that the trial court would soon enter another order dismissing the remaining claims.
This Court granted the Motion to Abate on March 4, 2015.
The trial court has now entered an order addressing the remaining claims,
but it did not dismiss those claims. Instead, the trial court denied the remaining
defendant’s motion to dismiss Becky’s claims against it. There is thus no final
judgment entered in the proceedings below, and this appeal is premature.
Becky therefore requests that this Court dismiss this appeal without
prejudice as untimely. Becky intends to file another appeal once the judgment
below becomes final.
Counsel for Appellee City of Cedar Park and the individual Appellees has
indicated that these Appellees do not oppose this motion. Counsel for Appellee
Milestone has not responded to inquiries about whether it opposes this motion.
WHEREFORE, Appellant requests that this motion be granted and that
Appellant’s appeal be dismissed without prejudice.
Respectfully submitted,
HUSCH BLACKWELL LLP
By /s/ Elizabeth G. Bloch
ELIZABETH G. BLOCH
State Bar No. 02495500
Heidi.bloch@huschblackwell.com
111 Congress Avenue, Suite 1400
Austin, Texas 78701-4093
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(512) 472-5456 (Telephone)
(512) 479-1101 (Facsimile)
Leonard B. Smith
State Bar No. 18643100
lsmith@leonardsmithlaw.com
P.O. Box 684633
Austin, Texas 78768
(512) 914-3732 (Telephone)
(512) 532-6446 (Facsimile)
ATTORNEYS FOR APPELLANT
CERTIFICATE OF CONFERENCE
The undersigned certifies that she has consulted via email with counsel for
Appellees the City of Cedar Park and the individual Appellees, and they have
indicated that they do not oppose this motion. Counsel for Milestone has not
responded to multiple inquiries about whether it opposes this motion.
/s/ Elizabeth G. Bloch
ELIZABETH G. BLOCH
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document
was served on the 23rd day of March, 2015, via the Court’s electronic filing
system and/or email to the following counsel of record:
Cobby Caputo
ccaputo@bickerstaff.com
Bradley B. Young
byoung@bickerstaff.com
Bickerstaff Heath Delgado Acosta LLP
3711 South MoPac Expressway
Building One, Suite 300
Austin, Texas 78746
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Mark Hawkins
mhawkins@abaustin.com
Armbrust & Brown, PLLC
100 Congress, Suite 1300
Austin, Texas 78701
/s/ Elizabeth G. Bloch
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