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
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOURTH COURT OF APPEALS DISTRICT
06/26/2015 4:02:39 PM
SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
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
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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.
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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.
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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.
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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
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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
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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
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