                                                                                           ACCEPTED
                                                                                       03-14-00129-CV
                                                                                               5678335
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                  6/15/2015 2:18:56 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                            NO. 03-14-00129-CV

                                                                 FILED IN
                      IN THE COURT OF APPEALS    3rd COURT OF APPEALS
                  THIRD COURT OF APPEALS DISTRICT AUSTIN, TEXAS
                           AUSTIN, TEXAS         6/15/2015 2:18:56 PM
                                                              JEFFREY D. KYLE
                                                                   Clerk

  CITY OF NEW BRAUNFELS, GALE POSPISIL, ROBERT CAMERENO, TOM WILBER
                         AND MARY QUINONES,
                                                      Appellants
                                      v.
  GARRISON MAURER D/B/A COMAL TOWING, JERAMIE HERNANDEZ D/B/A JJ
    TOWING, AND ROBERT FLEMING D/B/A PRO CARE WRECKER SERVICE,
                                                            Appellees

ON APPEAL FROM THE 433RD JUDICIAL DISTRICT COURT, COMAL COUNTY, TEXAS
                 HONORABLE DIB WALDRIP, PRESIDING
                      CAUSE NO. C2013-0517D


     APPELLEES’ RESPONSE TO APPELLANTS’ MOTION TO
             DISMISS ENTIRE CASE AS MOOT


TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellees respectfully present this response to appellants’ motion to

dismiss. Appellees want it made clear to the Court that they are not opposed

to appellants’ request that their appeal be dismissed. Appellees, however,

assert that appellants are not entitled to all of the relief requested in their
motion. Specifically, appellants are not entitled to a judgment1 from this

Court dismissing all of appellees’ claims with prejudice.

                                          I.

        This interlocutory appeal was initiated by appellants after the trial

court denied appellants’ plea to the jurisdiction. CR 520. Because the plea

was denied, appellees could proceed to trial on their various claims against

appellants, which include ultra vires claims and violations of the Texas

Open Meetings Act. See CR 119-29.

                                          II.

        “While an appeal from an interlocutory order is pending, the trial

court retains jurisdiction of the case . . . .” TEX. R. APP. P. 29.5. Although

further proceedings were stayed in the trial court during the pendency of

this appeal, see TEX. CIV. PRAC. & REM. CODE § 54.014(b), jurisdiction over

the entire case, which included claims against other defendants that are not

parties to this appeal, 2 remains vested in the trial court. See TEX. R. APP. P.

29.5.

                                         III.

        The Court does not have the authority to dismiss all of appellants’

claims with prejudice given the procedural posture of this appeal. Instead,

1
 Appellants did not specifically request a judgment from the Court dismissing appellees’
claims with prejudice, but a final judgment would have to be entered to effectuate the
relief requested by appellants.
2
 Appellees also sued other towing companies for tortious interference with prospective
business relations, business disparagement, and defamation. CR 130-32.


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there are two options: “dismiss the appeal or affirm the appealed judgment

or order.” TEX. R. APP. P. 42.3. As is explained above, appellees are not

opposed to a dismissal of appellants’ appeal. But there is simply no basis for

appellants to request that this Court enter a judgment dismissing appellees’

claims with prejudice. Any resulting “final judgment” must be issued from

the trial court as it is the court with continuing jurisdiction over appellees’

claims. See TEX. R. APP. P. 29.5.

      WHEREFORE, PREMISES CONSIDERED, appellees respectfully

request that this Court deny the appellants’ Motion to Dismiss Entire Case as

Moot to the extent that appellants request that the Court dismiss all of

appellees’ claims with prejudice. Appellees also request that the Court grant

them such other and further relief to which they may be justly and equitably

entitled.




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                                      Respectfully submitted,


                                      /s/ Samuel V. Houston, III
                                      SAMUEL V. HOUSTON, III
                                      State Bar No. 24041135
                                      HOUSTON DUNN, PLLC
                                      4040 Broadway, Suite 440
                                      San Antonio, Texas 78209
                                      (210) 775-0882
                                      (210) 826-0075 (fax)
                                      Email: sam@hdappeals.com

                                      DANIEL P. MCCARTHY
                                      State Bar No. 13367100
                                      MCCARTHY LAW FIRM, P.C.
                                      10001 Reunion Place, Suite 640
                                      San Antonio, Texas 78216
                                      (210) 572-7888
                                      (210) 979-8734 (fax)
                                      Email: dan@mccarthy-law.com

                                      ATTORNEYS FOR APPELLEES


                       CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing document
has been served in accordance with the Texas Rules of Appellate Procedure
on the 15th day of June, 2015, to the following:

      Ryan Henry                      via email/eservice
      Law Offices of Ryan Henry, PLLC
      1380 Pantheon Way, Suite 215
      San Antonio, Texas 78232
      ryan.henry@rshlawfirm.com

                                          /s/ Samuel V. Houston, III
                                          SAMUEL V. HOUSTON, III


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