Becky, Ltd. v. Milestone Community Builders, LLC The City of Cedar Park Matt Powell Stephen Thomas Mitch Fuller Lyle Grimes Lowell Moore Jon Lux And Don Tracy

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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 AUS-6080685-1 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 2 AUS-6080685-1 (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 3 AUS-6080685-1 Mark Hawkins mhawkins@abaustin.com Armbrust & Brown, PLLC 100 Congress, Suite 1300 Austin, Texas 78701 /s/ Elizabeth G. Bloch 4 AUS-6080685-1