Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/15/2015 2:18:56 PM JEFFREY D. KYLE Clerk NO. 03-14-00129-CV THIRD COURT OF APPEALS 6/15/2015 2:18:56 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-14-00129-CV *1 ACCEPTED ^[5678335] CLERK IN THE COURT OF APPEALS THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS C ITY OF N EW B RAUNFELS , G ALE P OSPISIL , R OBERT C AMERENO , T OM W ILBER

AND M ARY Q UINONES , Appellants v.

G ARRISON M AURER D / B / A C OMAL T OWING , J ERAMIE H ERNANDEZ D / B / A JJ

T OWING , AND R OBERT F LEMING D / B / A P RO C ARE W RECKER S ERVICE ,

Appellees O N PPEAL FROM THE 433 RD J UDICIAL D ISTRICT C OURT , C OMAL C OUNTY , T EXAS

H ONORABLE D IB W ALDRIP , P RESIDING C AUSE N O C2013-0517D APPELLEES’ RESPONSE TO APPELLANTS’ MOTION TO

DISMISS ENTIRE CASE AS MOOT TO THE HONORABLE THIRD COURT OF APPEALS:

Appellees respectfully present this response to appellants’ motion to

dismiss. Appellees want it made clear to the Court that they are not opposed

to appellants’ request that their appeal be dismissed. Appellees, however,

assert that appellants are not entitled to all of the relief requested in their

motion. Specifically, appellants are not entitled to a judgment ^[1] from this

Court dismissing all of appellees’ claims with prejudice.

This interlocutory appeal was initiated by appellants after the trial

court denied appellants’ plea to the jurisdiction. CR 520. Because the plea

was denied, appellees could proceed to trial on their various claims against

appellants, which include ultra vires claims and violations of the Texas

Open Meetings Act. See CR 119-29.

II.

“While an appeal from an interlocutory order is pending, the trial

court retains jurisdiction of the case . . . .” T EX . R. A PP . P. 29.5. Although

further proceedings were stayed in the trial court during the pendency of

this appeal, see T EX . C IV . P RAC . & R EM . C ODE § 54.014(b), jurisdiction over

the entire case, which included claims against other defendants that are not

parties to this appeal, ^[2] remains vested in the trial court. See T EX R. PP . P.

29.5.

III.

The Court does not have the authority to dismiss all of appellants’

claims with prejudice given the procedural posture of this appeal. Instead,

*3 there are two options: “dismiss the appeal or affirm the appealed judgment

or order.” T EX . R. A PP . P. 42.3. As is explained above, appellees are not

opposed to a dismissal of appellants’ appeal. But there is simply no basis for

appellants to request that this Court enter a judgment dismissing appellees’

claims with prejudice. Any resulting “final judgment” must be issued from

the trial court as it is the court with continuing jurisdiction over appellees’

claims. See T EX R. PP . P. 29.5.

WHEREFORE, PREMISES CONSIDERED, appellees respectfully

request that this Court deny the appellants’ Motion to Dismiss Entire Case as

Moot to the extent that appellants request that the Court dismiss all of

appellees’ claims with prejudice. Appellees also request that the Court grant

them such other and further relief to which they may be justly and equitably

entitled.

Respectfully submitted, /s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III State Bar No. 24041135 HOUSTON DUNN, PLLC 4040 Broadway, Suite 440 San Antonio, Texas 78209 (210) 775-0882 (210) 826-0075 (fax) Email: sam@hdappeals.com DANIEL P. MCCARTHY State Bar No. 13367100 MCCARTHY LAW FIRM, P.C. 10001 Reunion Place, Suite 640 San Antonio, Texas 78216 (210) 572-7888 (210) 979-8734 (fax) Email: dan@mccarthy-law.com ATTORNEYS FOR APPELLEES CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document

has been served in accordance with the Texas Rules of Appellate Procedure

on the 15 th day of June, 2015, to the following:

Ryan Henry via email/eservice

Law Offices of Ryan Henry, PLLC

1380 Pantheon Way, Suite 215

San Antonio, Texas 78232

ryan.henry@rshlawfirm.com

/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III

[1] Appellants did not specifically request a judgment from the Court dismissing appellees’ claims with prejudice, but a final judgment would have to be entered to effectuate the relief requested by appellants.

[2] Appellees also sued other towing companies for tortious interference with prospective business relations, business disparagement, and defamation. CR 130-32.