Austin Tele-Services LLC D/B/A Austin Tele-Services LP A/K/A ATS v. Futurenet GMBH
03-15-00554-CV
Tex. App.
Sep 10, 2015
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Case Information

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03-15-00554-CV

IN THE COURT OF APPEALS THIRD DISTRICT OF AUSTIN

FICED IN

3rd COURT OF APPEALS AUSTIN, TEXAS 9 / 10 / 201511 : 56 : 11 AM JEFFREY D. KYLE Clerk

AUSTIN TELE-SERVICES LLC DBA AUSTIN TELE-SERVICES LP AKA ATS,

Appellant, v.

FUTURENET GMBH,

Appellee.

Restricted Appeal from Cause No. C-1-CV-15-003365, Futurenet GMBH v. Austin Tele-Services LLC dba Austin Tele-Services LP aka ATS, in the County Court at Law No. 1 of Travis, County, Texas

APPELLANT'S UNOPPOSED MOTION TO DISMISS APPEAL

Jillian J. Keith State Bar No. 24013671 Sara E. Inman State Bar No. 24073098 Lawrence A. Waks State Bar No. 20670700 Wilson, Elser, Moskowitz, Edelman &; Dicker LLP 901 Main Street, Suite 4800 Dallas, Texas 75202 (214) 698-8000 (214) 698-1101 Facsimile

September 10, 2015

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APPELLANT'S UNOPPOSED MOTION TO DISMISS APPEAL

  1. Appellant filed notice of its restricted appeal on August 28, 2015. On August 31, 2015, Appellant and Appellee entered into a compromise agreement regarding matters related to Appellee's claims and causes of action against Appellant. As part of that compromise agreement, Appellant and Appellee agreed to file a Joint Motion to Vacate Default Judgment and Writ of Execution with the trial court.
  2. The Joint Motion to Vacate and Agreed Order Granting the Motion to Vacate Default Judgment and Writ of Execution were filed with the trial court on September 1, 2015. The trial court judge signed the order on September 8, 2015. A copy of the order is attached hereto as Exhibit A.
  3. Pursuant to Texas Rule of Appellate Procedure 42.1, Appellant must file a motion with the Court for dismissal. Under Rule 42.1(a)(1) "[i]n accordance with a motion of appellant, the court may dismiss the appeal.....unless such disposition would prevent a party from seeking relief to which it would otherwise be entitled."
  4. Appellant seeks an order from this Court dismissing Appellant's appeal.
  5. Dismissal of the appeal would not prevent a party from seeking relief to which it would otherwise be entitled. Appellant and Appellee agree that dismissal of the appeal is in the interest of both parties.

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  1. Because dismissal of the appeal would not prevent either party from seeking relief to which they would be otherwise entitled, the Court should grant the relief sought by this Motion to Dismiss Appeal.
  2. Appellant and Appellee agree that each party shall bear its own costs.
  3. Appellant and Appellee agree that the mandate should be issued early.

Respectfully submitted,

Attorneys For Appellant

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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing instrument has been forwarded to Appelle's counsel of record via the Texas Rules of Civil Procedure on this the 10th day of September, 2015.

VIA FAX(512-264-3782)

Michael G. Null State Bar No. 15134300 20209 W. HWY 71 Spicewood, TX 78669 (512) 264-1156

CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that she conferred with counsel for Appellee, Michael Null, on September 9, 2015 via phone. Counsel for Appellee supports the filing of this motion.

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CAUSE NO. C-1-CV-15-003365

ORDER GRANTING JOINT MOTION TO VACATE DEFAULT JUDGMENT AND WRIT OF EXECUTION

On this day came to be heard Plaintiff Futurenet GMBH and Defendant Austin TeleServices LLC dba Austin Tele-Services LP aka ATS's Joint Motion to Vacate Default Judgment and Writ of Execution. The Court, after considering all matters of record is of the opinion that the motion is meritorious and should be GRANTED.

It is therefore ORDERED that the Default Judgment against Defendant Austin TeleServices LLC dba Austin Tele-Services LP aka ATS signed and entered of record on June 24, 2015, as well as the Writ of Execution, signed and issued on July 30, 2015, by this Court, is hereby VACATED.

2091092v. 1

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State Bar No. 20670700 lawrence.wake@wilsonelser.com JLLIAN KeItH State Bar No. 24013671 jillian.Keith@wilsonelser.com Sara E. DYMAN State Bar No 24073098 sara.imman@wilsonelser.com 901 Main Street, Suite 4800 Dallas, Texas 75202 (214) 698-8000 (214) 698-1101 Facsimile

ATORNEYS FOR DEFENDAPT

MICHAEL G. NULL State Bar No. 15134300 mnull@mindspring.com 20209 W HWY 71 Spicewood, TX 78669 (512) 264-1156 (512) 264-3782 Facsimile

Attorney For Plaintiff