ACCEPTED
03-16-00004-CV
12961840
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/28/2016 5:33:42 PM
JEFFREY D. KYLE
CLERK
NO. 03-16-00004-CV
IN THE FILED IN
3rd COURT OF APPEALS
THIRD COURT OF APPEALS AUSTIN, TEXAS
AUSTIN, TEXAS 9/28/2016 5:33:42 PM
_______________________________________JEFFREY D. KYLE
Clerk
CITY OF AUSTIN,
Appellant,
V.
NATIONAL MEDIA CORPORATION AND ACME PARTNERSHIP, L.P.,
Appellees.
_______________________________________
APPELLANT’S AMENDED STATUS REPORT
________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
Per the Court’s August 31, 2016 memorandum opinion, Appellant City of
Austin files its status report on abatement, which expires September 28, 2016.
Appellees do not agree with the City’s report.
The City of Austin no longer seeks abatement of its interlocutory appeal filed
on January 5, 2016. Abatement was granted on May 12, 2016, the Court has already
granted three extensions of the abatement, further abatement is not warranted, and
further delay is contrary to the City’s right to an accelerated appeal. See Tex. Civ.
Prac. & Rem. Code, § 51.014(a)(8).
Nine months have lapsed since the City filed its notice of interlocutory appeal
from the trial court’s denial of the City’s plea to the jurisdiction of Appellees’ Texas
1
Uniform Declaratory Judgment Act (“UDJA”) and state and federal takings claims
under the Texas and United States Constitutions. Interlocutory appeal was abated
to allow the case to proceed to a bench trial on the remaining issue of damages for
takings claims only, not equitable relief under the UDJA. A bench trial was held on
June 1 and June 2, 2016, and after the close of evidence, the trial court took the case
under consideration and entered a letter ruling on July 26, 2016. A final judgment
was entered on September 12, 2016. Appellees have requested Findings of Fact and
Conclusions of Law, have stated their intent to file post-judgment motions, and also
to appeal the damages award.
First, jurisdictional issues and governmental immunity warrant that the City
of Austin, a governmental entity, not expend public resources unnecessarily. It is
Appellees’ burden to overcome the threshold issues of jurisdiction and governmental
immunity, issues which should be resolved before the City incurs any further time
and expense to fully brief the damages.
Second, an interlocutory appeal is an accelerated appeal, and the case has
already been unnecessarily delayed for many months awaiting a resolution on
damages, which this Court cannot address before resolving the merits of this
interlocutory appeal. Judicial economy warrants proceeding on the merits before
any appeal on damages is heard. Appellees’ damages appeal need not be before the
Court for a ruling on interlocutory appeal.
2
Third, Appellees’ have filed a request for findings of fact and conclusions of
law, which extends the notice-of-appeal deadline to December, and have indicated
other post-trial motions are to come that extend the trial court’s plenary power.
Unless permitted to go forwarded with this interlocutory appeal, this will further
delay resolution of the threshold jurisdiction issues until next year.
The bench trial did not moot any issues on interlocutory appeal, and did not
address the relief sought under the UDJA. The damages award is wholly
independent of the merits of the interlocutory appeal, and the City requests that the
abatement be lifted, and that it be permitted to exercise its right to an accelerated
appeal without further delay into 2017.
Dated: September 28, 2016
Respectfully submitted,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN L. RILEY, CHIEF LITIGATION
BY: /S/ Chris Edwards
Chris Edwards
Assistant City Attorney
State Bar No. 00789276
Chris.edwards@austintexas.gov
Andralee Cain Lloyd
Assistant City Attorney
State Bar No. 24071577
Andralee.lloyd@austintexas.gov
City of Austin-Law Department
P. O. Box 1546
Austin, Texas 78767-1546
Telephone: (512) 974-2419
3
Facsimile: (512) 974-1311
COUNSEL FOR APPELLANT
CERTIFICATE OF CONFERENCE
I hereby certify that on September 27, 2016, I conferred with counsel for
Plaintiffs - Appellees on the relief requested herein and they are opposed.
/s/ Andralee Cain Lloyd
ANDRALEE CAIN LLOYD
COUNSEL FOR APPELLANT
4
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of this notice on counsel of record
electronically, in accordance with the Court’s rules on electronic filing, on
September 28, 2016, as listed below:
Via E-Service to:
Eric B. Storm
The Storm Law Firm
11420 Bee Caves Rd., Suite A-100
Austin, TX 78738
Kurt Kuhn
KUHN HOBBS PLLC
3307 Northland Drive, Suite 310
Austin, Texas 78731
COUNSEL FOR APPELLEES
/s/ Chris Edwards
CHRIS EDWARDS
COUNSEL FOR APPELLANT
5