Western Rim Property Services Inc. v. Paula Bazan-Garcia

ACCEPTED 04-14-00829-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/7/2015 12:22:28 PM KEITH HOTTLE CLERK No. 04-14-00829-CV FILED IN IN THE COURT OF APPEALS 4th COURT OF APPEALS SAN ANTONIO, TEXAS FOR THE FOURTH JUDICIAL DISTRICT OF TEXAS 4/7/2015 12:22:28 PM AT SAN ANTONIO KEITH E. HOTTLE Clerk Western Rim Property Services, Inc., Appellant, v. Paula Bazan-Garcia, Appellee. ON APPEAL FROM THE COUNTY COURT AT LAW NO. CC# 03 OF BEXAR COUNTY, TEXAS, CAUSE NO. 2014CV01064 AGREED MOTION TO DISMISS APPEAL BAKER BOTTS L.L.P. ESPINOZA LAW FIRM, PLLC Jennifer M. Trulock Javier Espinoza State Bar No. 90001515 State Bar No. 24036534 Stephanie F. Cagniart Josue Garza State Bar No. 24079786 State Bar No. 24072737 2001 Ross Avenue, Suite 600 503 E. Ramsey, Suite 103 Dallas, Texas 75201-2980 San Antonio, Texas 78216 (214) 953-6500 (210) 229-1300 (214) 953-6503 (Facsimile) (210) 229-1302 (Facsimile) jennifer.trulock@bakerbotts.com josue@espinozafirm.com ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE WESTERN RIM PROPERTY SVCS, INC. PAULA BAZAN-GARCIA 1 Pursuant to Texas Rules of Appellate Procedure 42.1(a)(2)(A) and 43.2(f), Defendant-Appellant Western Rim Property Services, Inc. (“WRPS”) and Plaintiff-Appellee Paula Bazan-Garcia (“Bazan-Garcia”) file this Agreed Motion requesting that the Court dismiss the pending appeal without prejudice because the parties have agreed to proceed in arbitration. BACKGROUND Bazan-Garcia filed a Petition against WRPS in Bexar County Court of Law on July 1, 2014. CR 9. In response, WRPS moved to compel arbitration of Bazan- Garcia’s claims, pursuant to two arbitration agreements between the parties. CR 16. The trial court denied WRPS’s motion on November 10, 2014. CR 144. WRPS timely filed this accelerated interlocutory appeal on November 24, 2014. CR 156–57. The parties completed briefing for the appeal on February 9, 2015. On March 17, 2015, the Clerk issued notice that the cause was set for formal submission on the briefs before this Court on April 7, 2015. MOTION Parties may voluntarily dismiss an appeal. Tex. R. App. P. 42.1. “In accordance with an agreement signed by the parties or their attorneys and filed with the clerk, the court may render judgment effectuating the parties’ agreement.” Tex. R. App. P. 42.1(a)(2)(1). The court of appeals’ authority includes the power to dismiss an interlocutory appeal without prejudice. See, e.g., Franco v. Sanchez, 2 Case No. 04-15-00053-CV, 2015 WL 1244868, at *1 (Tex. App.—San Antonio Mar. 18, 2015, no. pet. h.) (citing Tex. R. App. P. 42.1(a), 43.2(f)). In this appeal, WRPS asked the Court to reverse the trial court’s order denying WRPS’s motion to compel arbitration, and to direct the trial court to compel arbitration of all of Bazan-Garcia’s claims in accordance with the parties’ arbitration agreements. The parties have now resolved that dispute by agreement. On April 6 and 7, 2015, the parties executed an Agreement to Proceed in Arbitration (the “Agreement”), in which Bazan-Garcia agreed to abate the case currently pending before the trial court and to pursue all of her claims against WRPS in arbitration, including any challenges to the validity and enforceability of the parties’ arbitration agreements. A copy of this Agreement is attached to as Appendix 1. In accordance with their Agreement to Proceed in Arbitration, the parties request that this Court dismiss this appeal without prejudice because the parties’ Agreement resolves the disputes raised in this interlocutory appeal. PRAYER FOR RELIEF For the foregoing reasons, the parties respectfully request that the Court dismiss this appeal without prejudice, with each party to bear its respective costs and attorneys’ fees. 3 Agreed to and submitted this 7th day of April, 2015. BAKER BOTTS L.L.P. ESPINOZA LAW FIRM, PLLC By: /s/ Jennifer M. Trulock By: /s/ Josue Garza Jennifer M. Trulock Javier Espinoza State Bar No. 90001515 State Bar No. 24036534 2001 Ross Avenue, Suite 600 Josue Garza Dallas, Texas 75201 State Bar No. 24072737 (214) 953-6500 503 E. Ramsey, Suite 103 (214) 953-6503 (Facsimile) San Antonio, Texas 78216 jennifer.trulock@bakerbotts.com (210) 229-1300 (210) 229-1302 (Facsimile) Stephanie F. Cagniart josue@espinozafirm.com State Bar No. 24079786 98 San Jacinto Blvd, Ste 1500 ATTORNEYS FOR APPELLEE Austin, Texas 78701 PAULA BAZAN-GARCIA (512) 322-2500 (512) 322-2501 (Facsimile) stephanie.cagniart@bakerbotts.com ATTORNEYS FOR APPELLANT WESTERN RIM PROPERTY SVCS, INC. 4 CERTIFICATE OF SERVICE I hereby certify that on April 7, 2015, a copy of the foregoing was served by the Court’s CM/ECF electronic service and by electronic mail on the following parties: Javier Espinoza Josue F. Garza The Espinoza Law Firm, PLLC 503 E. Ramsey, Ste. 103 San Antonio, Texas 78216 210-229-1302 (Facsimile) josue@espinozafirm.com /s/ Stephanie F. Cagniart Stephanie F. Cagniart 5 APPENDIX 1 To: • 12106913684 Fax: ~1 210SQ1~51l4 Page 3 orr.No . 2381 10 ::i~P . 2/4 From: The 'A pI, 6. 201 ")c:;: 1·.38PM02 AGREEMENT TO PROCEED IN ARBITRATION This Agreeme.11t to Proceed in Arbitration ("Agreement") is made by and between Pa.uln Bazan-Garcia. ("Bazan-Garci~'') and Western Rim Property Servioes ("WRPS'') . (colleoti.vely, ~'the Partiesn), on the following terms; :@Cll'AJ;S WHEREAS, Bazan-Garcia· wishes to pt.usue certain claims that she as.serted against WRPS in the Origi11a1 :Petition and Fi1-s1 Amended '.Petjtion filed in .8taan-Garcia v. WBst~rn Rim Property Services• .lnc., Case No. 2014CV01064, County Court at Law #03, Bexa:t County, 'Texas (the "Case"); and WHEREAS, WRPS contends that BB.Zilll-Garcia1s claims are 'subject to arbitration, and has filed an appeal to enforce the patties• arbitration agreements ~n Westem Rim Property Services, lna. v. Bazan.-Garciaj Case No. 04-14-00829-CV, Fourth Court of Appeals District (the ''Appeal'~). which is curr~ntly set for furmal submission on the briefs befol'e the . Court of Appeals on April 7, 2015; and . WHEREAS, the Parties> l'eoogni.zing the expense1 inconvenience and ti.mo consumption in.volvod for the Parties and the Court of Appeals in resolving fue Appeal, have agreed that the Appeal should be dismissed, that the Case should be abated~ and that Bazan~ Garcia mLiSt prn;sue her claims against WR.PS In arbitration. NOW. niEREFORE. fo:r and in consideration of the promises, covenants and undertakings set forth herein, Bazan~Garcia and WR.PS agree as follows: 1. \VRPS covenants find agrees that within. tWo (2) busine.!ls- days of the Effective Date of this Agreement, W.RPS will. file· an Agreed Motion on behalf of the PaJ:ties in 'the Coui-t of Appeals. The Agreed Motion will request that the Co»rt of Appeals dismiss the Appeal without prejuclice., with each party t.o ~ear its respective cos~ and attorneys' fees. The Parties e~pressly agree that the County Court•s Order has no ptecedential effect io. th:is or any other di.spute between tb.e Parties. By agreeing to di&rriiss the Appeal, WRPS does not conoede that the Colll.'lty Court's Order :-vas ern:rect, lllld maintah1s that the P.t!l.rlie.s' arbitrE\.tion agreements are valid and enfurce1:1.blo between, tbe Parties> &nd Bazan-Garcfo maintains her position that the arbit:mtion agreeme.at is unconscionable and does not waive her right assert this argument to an arbitrator. · . 2. Bazan-Garcta ~oveoants and agrees that within seven (7) days after t11e date on which the Court of Appeals issues an Order dismissing the Appeal, Baza:o.·GaI'eia w111 file a motion to abate the Case in state court, pending resolution of the arbitration. 3. Baza.i.).-Gat·cia covenants and agrees to pursue any cla\ms against WR.PS in · arbitration, pursuant to tbe arbitration agreements referenced in .WRPS's Opening Brief in. the. Appe!il as App. 3 (Arbitration Agreement) and App. 13 (Employee Handbook), and in acoordance Vtith the Employment Atbitratlon Rules of the American Arbitration Association (('AAA'"), E!Vailable to the pubBc through AAA's website. Bazan-Garcia covenants and agrees to 'Page'1 of3 Agreeanept ti) Proceeg in Arbftratigp. Io: +1210!iS13b84 F&Y: + 1 2 10591~5(14 file hei: dein.@d for arbitration within sixty (60) days after the date on which the CoW1ty Co"Urt abates the Case. Tbe Parties agree Bazsu~Garo'ia has the right to challenge the enforceability of those agteeme11ts in arbitration. 4. The Effective Date of the Agreement is the date by which the Agreement hns been, sigtted by both. Parties or their authorized represe11tatives. ' . 5. nus Agreement shall inure to the benefit of and be binding upon the Parties> .their a.g~ts an.d representatives. the h~rs, successors and assigns of the respective parties. AGREED to by: I .I . I: Panla B.azan~Garcla: Page2 of3 Ai!:eement t:o.J,!roceed in Arbitratio~ Wes tern Rim Property Services: By: Its: cM ~e k of/;fa //JU£, {I' , LL-(, ~ ~f~ Date: