Case Information

*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 06/26/2015 4:02:39 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00159-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/26/2015 4:02:39 PM KEITH HOTTLE CLERK NO. 04-15-00159-CV IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS RONALD MENSCH APPELLANT VS.

STATE FARM FIRE & CAS. CO. APPELLEE APPELLANT’S MOTION TO DISMISS TO THE HONORABLE COURT OF APPEALS:

Now comes Appellant Ronald Mensch, and files this his Motion to

Dismiss, and in support thereof would respectfully show as follows:

I. BACKGROUND Ronald Mensch (hereafter “Mensch”) initially sued State Farm Fire &

Casualty Company (hereafter “State Farm”), the workers’ compensation

carrier for Mensch’s employer making claim for benefits arising out of a

1980 injury.

After over four years of litigation in the District Court of Bexar

County Mensch further sued the Texas Department of Insurance—Division

of Workers’ Compensation (hereafter “the DWC”).

Both the DWC and State Farm filed pleas to the jurisdiction claiming

that Mensch had failed to exhaust his administrative remedies. The trial

court denied both pleas. The DWC appealed in Cause No. 04-14-00449-CV,

styled “ Texas Department of Insurance—Division of Workers’ Compensation vs.

Ronald Mensch ”(hereafter “Mensch I”).

At the same time the DWC filed its interlocutory appeal State Farm

filed an original proceeding petitioning this Court for a writ of mandamus

to order Judge Nellermoe to grant its plea to the jurisdiction in Cause

No.04-14-00519-CV, In re State Farm Fire & Casualty Company . (Hereafter

“Mensch II”).

While Mensch II was pending Judge Nellermoe retired.

On January 14, 2015 this Court issued an opinion in Mensch I which

reversed and rendered a dismissal.

On January 27, 2015 This Court ordered Judge Nellermoe’s successor,

Hon. Stephani Walsh, to be substituted as the respondent in Mensch II and

abated the proceeding until such time as Judge Walsh could reconsider the

plea to the jurisdiction. CR 248–249.

On March 2, 2015 Mensch filed a Petition for Review to the Texas

Supreme Court seeking a review of this Court’s January 14, 2015 opinion in

Mensch I.

Upon reconsideration of State Farm’s plea to the jurisdiction Judge

Walsh signed an order granting the plea and dismissing the case on March

5, 2015. CR 250–251. This Court then dismissed the petition for writ of

mandamus in Mensch II on March 11, 2015. CR 252.

Mensch filed his notice of appeal of Judge Walsh’s dismissal order on

March 23, 2015, leading to the instant appeal (hereafter “Mensch III”).

The Supreme Court denied the petition for review of Mensch I

without issuing an opinion on April 24, 2015. The mandate on Mensch I

issued from this Court on June 9, 2015.

Mensch’s brief in this cause is due on July 3, 2015.

II.

Because Mensch had not obtained a ruling from the Texas Supreme

Court on Mensch I at the time of Judge Walsh’s dismissal of State Farm he

had no choice but to appeal Mensch III, the instant case.

However, now that this Court’s holding has become final all of the

issues in Mensch III have already been decided by the January 14, 2015

opinion in Mensch I.

In order to avoid filing a frivolous brief Appellant moves the Court to

dismiss this appeal with the costs to be borne by the party incurring same.

III.

Appellant prays that for the reasons listed above this Court dismiss

this appeal with the costs to be borne by the party incurring same and for

any further relief to which Appellant may show himself entitled.

Respectfully submitted, Law Offices of Miller & Bicklein 8207 Callaghan Road, Suite 250 San Antonio, Texas 78230 (210) 366-2400 (210) 366-4791 Fax By: _________________________ Kevin B. Miller State Bar No. 14094500 Mark A. Cevallos State Bar No. 24038810 Attorneys for Appellant *6 Certificate of Service By my signature, I hereby certify that a true and correct copy of the

above and foregoing Motion to Dismiss was served pursuant to TRAP 9.5

on this the 26th day of June, 2015 to:

Jana Richard

Mark Lindow

Lindow Stephens Treat, LLP

700 N. St. Mary’s St., Suite 1700

San Antonio, Texas 78205

(210) 227-2200

(210) 227-4602 fax ATTORNEYS FOR APPELLEE

By: e-Filing

_____________________ Mark A. Cevallos *7 NO. 04-15-00159-CV IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS RONALD MENSCH APPELLANT VS.

STATE FARM FIRE & CAS. CO. APPELLEE

ORDER OF DISMISSAL CAME ON TO BE HEARD, this the ______ day of ____________,

2015, Appellant’s Motion to Dismiss, and after considering same, this

Court finds that this Motion should be GRANTED. It is, therefore:

ORDERED, ADJUDGED and DECREED that this Appeal is

DISMISSED. IT IS FURTHER ORDERED that all costs be borne by the

party incurring same.

Signed this the _____ day of ___________________, 2015.

______________________________ JUDGE PRESIDING