                                                                                        ACCEPTED
                                                                                    03-15-00285-CV
                                                                                            5846733
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                               6/26/2015 3:35:15 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK

                       NO. 03-15-00285-CV
                                                                   FILED IN
                                                            3rd COURT OF APPEALS
                   IN THE THIRD COURT OF APPEALS                AUSTIN, TEXAS
                            AUSTIN, TEXAS                   6/26/2015 3:35:15 PM
                                                              JEFFREY D. KYLE
                                                                    Clerk

              VOLKSWAGEN GROUP OF AMERICA, INC.
                  AND AUDI OF AMERICA, INC.,
                                                                    Appellants,

                                      v.

                       JOHN WALKER III, ET AL.
                                                                    Appellees.

    On Appeal from the 201st Judicial District Court, Travis County, Texas
             Honorable Amy Clark Meachum, Presiding Judge


   INTERVENORS' RESPONSE IN OPPOSITION TO APPELLANTS'
        VERIFIED MOTION FOR TEMPORARY RELIEF TO
            PROTECT THE COURT'S JURISDICTION

Wm. R. Crocker                         J. Bruce Bennett
State Bar No. 05091000                 State Bar No. 0214550
807 Brazos, Suite 1014                 CARDWELL, HART & BENNETT, LLP
Austin, Texas 78767                    807 Brazos, Suite 1001
Telephone: (512) 478-5611              Austin, Texas 78701
Facsimile: (512) 474-2540              Telephone: (512) 322-0011
Email: crockerlaw@earthlink.net        Facsimile: (512) 322-0808
                                       Email: jbb.chblaw@sbcglobal.net

ATTORNEY FOR                           ATTORNEY FOR
INTERVENOR/APPELLEE                    INTERVENORS/APPELLEES
BUDGET LEASING, INC. D/B/A             RICARDO M. WEITZ, HI TECH
AUDI NORTH AUSTIN AND AUDI             IMPORTS NORTH, LLC, HI TECH
SOUTH AUSTIN                           IMPORTS SOUTH, LLC, AND HI
                                       TECH IMPORTS, LLC
                                         TABLE OF CONTENTS
I. SUMMARY OF THE RESPONSE......................................................................1

II. STATEMENT OF FACTS..................................................................................5

III. ARGUMENT ...................................................................................................11

        A.       Audi Is Not Entitled To Relief Under Texas Rules Of
                 Appellate Procedure 29.3 or 46.3.......................................................11

        B.       Audi Is Not Entitled To The Relief Actually Sought, Which
                 Is A Writ Of Injunction. .....................................................................15
                 1.        Audis' Motion Should Be Dismissed For Failure To
                            Comply With Rule 52. ..........................................................15

                 2.        An Injunction Is Not Necessary To Preserve The
                            Subject Matter Of The Appeal..............................................18
                 3.        Audi's Assertion That The Remand Proceeding Will
                            Be Completed Prior To This Court's Disposition Of
                            Audi's Appeal Is Speculative. ...............................................24
        C.       Audi's Own Conduct Militates Against The Relief Sought
                 And The Asserted Necessity Of Such Relief. ....................................27

        D.       Audi Should Be Sanctioned Pursuant To Tex. R. App. P.
                 52.11. ..................................................................................................30

IV. CONCLUSION AND PRAYER .....................................................................30

CERTIFICATE OF SERVICE…………………………………………………...32

CERTIFICATE OF COMPLIANCE……………………………………………...32




                                                             i
                                     INDEX OF AUTHORITIES

Cases
Ammex Warehouse Co. v. Archer,
    381 S.W.2d 478 (Tex. 1964) ................................................................26, 27

Appraisal Dist. v. O'Connor & Assocs.,
     267 S.W.3d 413 (Tex. App. - Houston [14th Dist.] 2008, no pet.)….........22

Baird v. Sam Houston Elec. Co-op.,
      627 S.W.2d 732 (Tex. App. - Houston [1st Dist.] 1981, no writ) ...............22

Beall v. Strake,
      602 S.W.2d 394 (Tex. Civ. App. - Austin 1980, orig. proceeding) ............21
Bennett v. Grant,
     2015 WL 1324857 (Tex. App. - Austin 2015, pet. pending) .....................14
Carpenter v. Hausman,
     601 S.W.2d 88 (Tex. Civ. App. - San Antonio 1980, orig.
     proceeding) .................................................................................................21
City of Houston v. Williams,
       99 S.W.3d 709 (Tex. App. – Houston [14th Dist.] 2003, no pet.) ..............23
Collier v. Central Nat'l Bank,
      564 S.W.2d 828 (Tex. Civ. App. - Austin 1978, orig. proceeding) ...........20
Corral-Lerma v. Border Demolition v. Envt'l Inc.,
     2015 WL 2265082 (Tex. App. - El Paso 2015, no pet.) ..............................14

Dalisa, Inc. v. Bradford,
      81 S.W.3d 876 (Tex. App. - Austin 2002, no pet.) .....................................14
Hall v. Stevens,
      254 S.W. 610 (Tex. Civ. App. - Dallas 1923, no writ) ...............................27

Holloway v. Fifth Court of Appeals,
     767 S.W.2d 680 (Tex. 1989) .......................................................................19

In re Bailey,
       296 S.W.3d 859 (Tex. App. - Tyler 2009, orig. proceeding) ......................26


                                                         ii
In re Brown,
       2003 WL 1563987 (Tex. App. - El Paso 2003, orig. proceeding) ..............16

In re Dyer,
       2010 WL 3795893 (Tex. App. - Houston [14th Dist.] 2010, orig.
       proceeding) ..................................................................................................16

In re Guardianship of Whitcomb,
       69 S.W.3d 826 (Tex. App. - Corpus Christi 2002, no pet.).........................14

In re Ince,
       2011 WL 6032718 (Tex. App. - Amarillo 2011, orig. proceeding) ............16

In re Johnson,
       2012 WL 5059838 (Tex. App. - Amarillo 2012, orig. proceeding) ............16
In re Lasik Plus of Texas, P.A.,
       2013 WL 816674 (Tex. App. - Houston [14th Dist.] 2013, orig.
       proceeding) ............................................................................................18, 20
In re Palmore,
       2005 WL 1979076 (Tex. App. - Amarillo 2005, orig. proceeding) ............16
In re Place,
       2010 WL 1817780 (Tex. App. - San Antonio 2010, orig.
       proceeding) ..................................................................................................15
In re R.W.G.,
       2003 WL 1564310 (Tex. App. - Fort Worth 2003, no pet.) ......................14
In re Smith,
       2004 WL 254079 (Tex. App. - Waco 2004, orig. proceeding) .............18, 20

Infonova Solutions, Inc. v. Griggs,
      82 S.W.3d 613 (Tex. App. - San Antonio 2002, no pet.) ............................11
Kaigler v. Gen. Elec. Mortg. Ins. Corp.,
      961 S.W.2d 273 (Tex. App. - Houston [1st Dist.] 1998, no writ) ..............12

LaBranche v. State,
     2014 WL 3411207 (Tex. App. - Austin 2014, no pet.) ...............................14




                                                          iii
Landry's Seafood Inn & Oyster Bar- Kemah, Inc. v. Wiggins,
     919 S.W.2d 924 (Tex. App. - Houston [14th Dist.]
     1996)..............................................................................................................28

Lehmann v. Har-Con Corp.,
     39 S.W.3d 191 (Tex. 2001). ........................................................................12

Los Angeles Heights Indep. Sch. Dist. v. Chestnut,
      287 S.W. 693 (Tex. Civ. App. - San Antonio 1926, no writ) .....................27

Mag-T, L.P. v. Travis Cent. Appraisal Dist.,
     161 S.W.3d 617 (Tex. App. - Austin 2005, pet. denied)…………………23

Quebodeaux v. Lundy,
     977 S.W.2d 465 (Tex. App. - Tyler 1998, no pet.) .....................................12
Rush v. Barrios,
      56 S.W.3d 88 (Tex. App. - Houston [14th Dist.] 2001, pet. denied) .........15

Sonny Arnold, Inc. v. Sentry Sav. Ass'n,
     602 S.W.2d 90 (Tex. Civ. App. - Amarillo 1980, orig. proceeding) ..........21

Susanoil, Inc. v. Continental Oil Co.,
     516 S.W.2d 260 (Tex. Civ. App. - San Antonio 1973, no writ) .................15
Winfield v. Renfro,
      792 S.W.2d 524 (Tex. App. - Houston [1st Dist.] 1990, no writ) ...............11

Yturria Town & Improvement Co. v. Hidalgo Cty.,
      114 S.W.2d 917, 918 (Tex. Civ. App. - San Antonio 1938, no writ) .........22

Statutes

Tex. Civ. Prac. & Rem. Code § 51.014(8)...............................................................13

Tex. Gov't Code § 22.221(a) ....................................................................................15
Tex. Gov't Code § 2001.143(a) ................................................................................25

Tex. Gov't Code § 2001.146(a) ................................................................................26
Tex. Gov't Code § 2001.146(b) ...............................................................................26


                                                           iv
Tex. Gov't Code § 2001.146(c) ................................................................................26

Tex. Gov't Code § 2001.146(e) ................................................................................26

Tex. Occ. Code § 2301.151 ......................................................................................5

Tex. Gov't Code § 2001.171 ....................................................................................19

Tex. Gov't Code § 2001.174(2)(B) ..........................................................................20

Tex. Gov't Code § 2001.174(2)(C) ..........................................................................20

Tex. Occ. Code § 2301.359 ................................................................................... 5, 6
Tex. Occ. Code § 2301.360 ......................................................................................5
Tex. Occ. Code § 2301.360(d) ..................................................................................6
Tex. Occ. Code § 2301.458 ......................................................................................5

Tex. Occ. Code § 2301.704(a) ..................................................................................5

Tex. Occ. Code § 2301.751 .....................................................................................20

Administrative Rules

1 Tex. Admin. Code § 155.507(b) ...........................................................................17
1 Tex. Admin. Code § 155.507(c) ...........................................................................23
43 Tex. Admin. Code § 215.55(c) ...........................................................................17

Rules of Appellate Procedure

Tex. R. App. P. 28 ....................................................................................................13
Tex. R. App. P. 29.3..................................................................................................3
Tex. R. App. P. 32.3.................................................................................................13

Tex. R. App. P. 46.3...........................................................................................13, 14

Tex. R. App. P. 52 ................................................................. 4, 13, 14, 15, 16, 18, 30

Tex. R. App. P. 52.1.................................................................................................15

                                                           v
Tex. R. App. P. 52.2.................................................................................................17

Tex. R. App. P. 52.3...........................................................................................15, 16

Tex. R. App. P. 52.3(a) ............................................................................................18

Tex. R. App. P. 52.3(k) ............................................................................................16

Tex. R. App. P. 52.7.................................................................................................16

Tex. R. App. P. 52.11...............................................................................................30


Other Authorities

Practice Before the Third Court of Appeals ¶ 18(b) ................................................17

Practice Before the Third Court of Appeals ¶ 39 ....................................................13
Black's Law Dictionary (10th ed. 2014) ............................................................11, 12




                                                          vi
    INTERVENORS' RESPONSE IN OPPOSITION TO APPELLANTS'
         VERIFIED MOTION FOR TEMPORARY RELIEF TO
             PROTECT THE COURT'S JURISDICTION

      COME NOW Budget Leasing, Inc. d/b/a Audi North Austin and Audi

South Austin ("Budget"), Ricardo M. Weitz ("Weitz"), Hi Tech Imports North,

LLC ("North"), Hi Tech Imports South, LLC ("South"), and Hi Tech Imports, LLC

("Imports" and, together with Budget, Weitz, North, and South, "Intervenors") and

respond as follows to Appellants Volkswagen Group of America, Inc. and Audi of

America, Inc.'s ("Audi") Verified Motion for Temporary Relief to Protect the

Court's Jurisdiction ("Motion for Temporary Relief" or "Motion").

                     I. SUMMARY OF THE RESPONSE
      More than two and a half years ago, in December 2012, Budget and Weitz

entered into an almost $70 million contract for the sale and transfer of Budget's

franchised Audi, Porsche, and Maserati dealerships to Weitz. After Audi refused

to approve the transfer, Budget and Weitz protested Audi's refusal with the Texas

Motor Vehicle Board ("Board"), which has exclusive original jurisdiction to hear

and decide such protests. The contested case proceeding concerning the merits of

the protest began in May 2013, and has been working its way through the State

Office of Administrative Hearings ("SOAH") and the Board for over two years.

      In late March 2015, Audi filed the lawsuit underlying this appeal, accusing

the Chairman of the Board and the two SOAH ALJs hearing the contested case of


                                        1
acting ultra vires, after the Board entered an order in February 2015 that Audi

perceived to be unfavorable. Audi's application to the Travis County district court

for a temporary restraining order was denied and its motion for temporary

injunction was never ruled on because the district court determined, correctly, that

all claims against the defendants were due to be dismissed for lack of subject

matter jurisdiction. Audi's frivolous appeal to this Court (and the instant, frivolous

motion) stems from that dismissal.

      First and foremost, Audi's motion should be denied because it is nothing

more than an effort to improperly disrupt and subvert the administrative and

judicial process and gain a "back door" injunction from this Court. Although Audi

presents its motion as one "to protect this Court's jurisdiction to decide this

dispute," the motion actually seeks the entry of a temporary injunction against

further administrative proceedings at SOAH and before the Board. Critically, such

relief was denied by the ALJs, by District Judge Rhonda Hurley, and then

effectively denied by District Judge Amy Meachum when she dismissed Audi's

case for lack of jurisdiction. If this Court were to grant Audi's motion, Audi would

receive the relief it unsuccessfully sought in the trial court – a temporary injunction

– without ever having proved the entitlement to such relief (and despite the fact

that its lawsuit seeking that relief was dismissed for lack of jurisdiction).




                                           2
      Given the harm Audi's requested relief would cause to Intervenors (whose

multi-million dollar purchase transaction has now been delayed for two and a half

years and would be further delayed for an unknown period of time), the relief

sought by Audi – an unproven injunction – would be inequitable, especially

because Audi cannot meet (and has not met) any, much less all, of the factors

necessary for injunctive relief.    It is not likely to prevail on the merits (as

evidenced by the fact that its application for a TRO was denied and its lawsuit was

dismissed by the district court), it will not suffer irreparable harm (as evidenced by

Audi's unexplained delay in filing suit after the Board entered the purportedly ultra

vires order and additional unexplained delay in seeking the relief it now seeks),

and the balance of the equities and the public interest favor the continuation, rather

than the disruption, of the statutorily mandated process for dealing with disputes

between dealers and manufacturers.

      Second, Audi's motion should be denied because Audi purports to seek relief

from an "interlocutory order" pursuant to Tex. R. App. P. 29.3, which permits an

appellate court to make orders necessary to preserve the parties' rights until

disposition of an interlocutory appeal. Audi's reliance on that rule is misplaced;

Judge Meachum's orders granted the pleas to the jurisdiction of Appellees Walker,

O'Malley, and Wilkov and dismissed the case for lack of jurisdiction. Together,




                                          3
those orders constituted a final judgment. For that reason, Rule 29.3 and the cases

construing it are immaterial to the resolution of Audi's motion.

      Third, the "temporary relief" Audi seeks is, in actuality, a request for a writ

of injunction in disguise. However, Audi has failed to comply with the mandatory

requirements set forth in Tex. R. App. P. 52 for seeking such an extraordinary writ.

Audi has not filed the required "original proceeding," but a motion in the pending

appeal.   That motion does not meet Rule 52's content, substance, or form

requirements. In particular, Audi has failed to name all "real parties in interest" in

what it did file. Specifically, Audi did not name the Board as a party to this

proceeding even though Audi requests an order prohibiting the Board from taking

further action in the contested case proceeding.

      Fourth, Audi's requested relief should be denied because allowing the

pending appeal to become moot will not destroy the subject matter of the appeal.

The subject matter of the appeal is, generally, whether the Board should approve

the proposed transfer of the dealerships, and, more specifically, whether the

Board's remand order to SOAH is valid. Audi has adequate remedies, other than

the extraordinary relief it seeks in its motion, to correct any alleged errors made by

the Board and SOAH in connection with the remand. It can argue to the Board that

the remand was improper and, if the Board rejects that argument, Audi can

challenge the validity of the remand through the statutorily-authorized process of



                                          4
judicial review – a process which expressly authorizes a district court to consider

claims that an administrative agency was acting ultra vires.

      Fifth, Audi's Motion for Temporary Relief should be denied because it is

entirely speculative. It is not a foregone conclusion that the remand proceeding

will be completed before this Court's determination of this appeal. In the absence

of such assurance, an injunction is improper.

                          II. STATEMENT OF FACTS
      1.    On May 14, 2013, Budget filed a Protest of Rejection of Applications

for Franchises (hereinafter the "Protest") with the Board regarding the purported

rejection of Budget's transfer, to Weitz, of Budget's Audi and Porsche dealerships

in Austin, Texas. (Pl.'s Ex. 3; R. 1884-1887.)     Weitz, along with North, South,

and Imports (the companies formed to own the Audi and Porsche dealerships)

intervened in the Protest.    (Pl.'s Ex. 4; CR 371-385.)       Sections 2301.151,

2301.359, 2301.360, and 2301.458 of the Texas Occupations Code (the "Code")

vest the Board with exclusive original jurisdiction to decide whether the proposed

transfer of a franchised dealership should be approved.        Pursuant to Section

2301.704(a) of the Code, the Board referred the matter to SOAH for a contested

case hearing. (CR 1879-1883.)

      2.    In late February and early March, 2014, an administrative hearing was

held and, on July 16, 2014, Appellees O'Malley and Wilkov (the "ALJs") issued a



                                         5
proposal for decision. (Pl.'s Ex. 8; CR 396-502.) The ALJs found that Weitz, the

buyer and intended manager of the dealerships, is "overly-qualified" to own

Budget's Audi and Porsche dealerships, but that Weitz's primary business partner

(anticipated to be the second largest owner of the dealerships' holding company) is

"under-qualified." (CR 499.) Therefore, pursuant to § 2301.360(d) of the Code,

the ALJs recommended the imposition of conditions that would render the

prospective transferees qualified under Section 2301.359 of the Code. (Id.)

       3.     The Protest came before the Board on September 12, 2014. At that

time, the Board, in a 3 to 2 vote, voted to dismiss the Protest for "want of

jurisdiction." (Pl.'s Ex. 9; CR 1889-1890.) Subsequently, on December 10, 2014,

the Board granted Budget and Intervenors' Motion for Rehearing, overturning its

previous order of dismissal.1 (Pl.'s Ex. 15; CR 1120-1121.)

       4.     On February 13, 2015, the Board voted – unanimously and over

Audi's objections – to remand the Protest to SOAH. (Pl.'s Ex. 16; CR 7-38.) The

Board's Interim Remand Order directed SOAH to consider certain, specific issues,

including whether Intervenors could meet the recommended conditions, and to do

so in an expedited manner. (Id. at 7-8.) The Board also recommended that




       1
          The Board's counsel later acknowledged that the Board has "always had jurisdiction
over this matter." (Pl.'s Ex. 18 at p. 12; CR 913.)


                                             6
defendants/appellees O'Malley and Wilkov, who had conducted the initial hearing,

preside over the remand proceedings. (Id.)

      5.     On February 18, 2015, the ALJs rendered an order scheduling a pre-

hearing conference. Two days later, on February 20, 2015, Audi filed a motion

with the ALJs asking them to send the Protest back to the Board. (CR 172-182.)

In the motion, Audi challenged the Board's authority to remand the Protest to

SOAH, the ALJs' authority to reopen the record, and the ALJs' authority to issue a

second proposal for decision. (Id. See also Pl.'s Ex. 19.) The ALJs denied that

motion on March 4, 2015. (Pl.'s Ex. 29.)

      6.     Also on March 4, 2015, the ALJs issued an order setting an

evidentiary hearing on the remand issues for April 16, 2015. (Id.) The parties

immediately began engaging in written discovery in accordance with the schedule

set forth by the ALJs.

      7.     On March 16, 2015, Audi filed its Emergency Motion to Vacate or

Modify Statutory Stay and to Stay Further Proceedings (the "Emergency Motion to

Stay") with the ALJs. (Pl.'s Ex. 2; CR 1868-1878.) Audi reasserted its belief that

the Board's remand and the reopening of the record were acts outside the Board's

and the ALJs' statutory authority.    (Id.)    Audi sought a stay of the remand

proceedings so that it could "expeditiously file a petition in the Travis County

district court" to address the purported ultra vires acts of the Board and SOAH.



                                           7
(Id.) Audi had already prepared a draft of the petition it proposed to file in the

district court and a copy of that draft was attached as an exhibit to its Emergency

Motion to Stay. (CR 1909-1939.)

      8.     On March 19, 2015, the ALJs rendered an order denying the

Emergency Motion to Stay. (Pl.'s Ex. 25; CR 1943-1945.)

      9.     Although it had already prepared its petition, Audi waited almost a

week, until March 25, 2015, to file it, along with its Application for Temporary

Restraining Order, Motion for Temporary Injunction and Request for Permanent

Injunction, and Alternative Motion for Emergency Stay in the Travis County

district court.   (CR 117-151.)   The defendants to Audi's petition were Board

Chairman John Walker and the two ALJs. (Id.) Audi requested a hearing on its

Application for Temporary Restraining Order, and such a hearing was held on

March 26, 2014, before Travis County district court Judge Rhonda Hurley. Judge

Hurley denied the application. (CR 713-714, 729-730.)

      10.    On March 27, 2015, Intervenors filed their petition in intervention in

the Travis County district court in support of Chairman Walker and the ALJs. (CR

665-703.) Intervenors asserted no claim against Audi or against Walker or the

ALJs. (Id.) On April 1, 2015, Intervenors filed their Plea to the Jurisdiction asking

that the claims against Walker and the ALJ be dismissed for lack of subject matter

jurisdiction. (CR 731-774.)



                                         8
      11.   Meanwhile, the parties continued to engage in preparations for the

remand hearing at SOAH, including written discovery, third party subpoenas, and

depositions. The parties also engaged expert witnesses and exchanged expert

designations and reports, filed witness and exhibit lists (and objections and

responses to objections regarding those lists), and moved to strike each other's

expert witnesses. (CR 668, 669, 1531.)

      12.   Approximately three weeks after Judge Hurley denied Audi's

application for a TRO, the ALJs held a two-day hearing on the remanded issues.

(CR 1980.) Audi participated in the hearing, cross-examining the witnesses called

by Intervenors, calling three witnesses of its own, introducing exhibits into

evidence, and presenting argument on evidentiary and other legal issues.

      13.   Chairman Walker and the ALJs filed their pleas to the jurisdiction in

the Travis County case on April 17, 2015. (CR 821-829, 836-843.)

      14.   Audi set its Motion for Temporary Injunction for hearing on April 30,

2015. (CR 830-832, 854-856.) Chairman Walker, the ALJs, and Intervenors set

their pleas to the jurisdiction for hearing on the same day. (CR 814-820, 833-835,

844-846.) Audi filed its brief in support of its Motion for Temporary Injunction on

April 23, 2015. (CR 867-903.)

      15.   On April 30, 2015, Judge Meachum granted the pleas to the

jurisdiction, dismissing all of Audi's claims in the case. (April 30, 2015 Hearing



                                         9
Transcript at p. 106 ("I am going to go ahead and rule and sustain the plea and --

the pleas to the jurisdiction and dismiss this case for lack of jurisdiction."; CR

2030-2031.)     Judge Meachum did not reach Audi's Motion for Temporary

Injunction because the dismissal for lack of jurisdiction rendered that motion moot.

      16.     On May 8, 2015, Audi appealed to this Court and filed its docketing

statement. (CR 2030.) In the docketing statement, Audi stated that it would not be

requesting "extraordinary relief (e.g. temporary or ancillary relief) from this Court"

and sought no such relief.

      17.     Meanwhile, the remand proceedings continued. On May 8, 2015,

Audi and Intervenors filed their post-hearing briefs with SOAH. On June 1, 2015,

Audi filed with SOAH a brief in response to Intervenors' post-hearing brief and

Protestant and Intervenors filed with SOAH a brief in response to Audi's post-

hearing brief. The parties also submitted proposed findings of fact and conclusions

of law to the ALJs. (Audi's Supplement to Motion for Temporary Relief at ¶¶ 10,

11 and attached Affidavit ¶¶ 3,4.)

      18.     On June 10, 2015, Audi sent a "letter brief" to the ALJs, purporting to

reply to some of the points raised in Protestant and Intervenors' response to Audi's

post-hearing brief. The ALJs permitted Protestant and Intervenors to respond to

the letter brief, which they did on June 15, 2015. The next day, June 16, 2015, the

ALJs entered an order closing the record on remand. (Id.)



                                         10
        19.     On June 15, 2015 – over six weeks after Judge Meachum dismissed

the Travis County case – Audi filed its Motion for Temporary Relief.

                                        III. ARGUMENT

        A.      Audi Is Not Entitled To Relief Under Texas Rules Of Appellate
                Procedure 29.3 or 46.3.
        Audi cannot obtain temporary relief under Rule 29.3 because this appeal is

not from an interlocutory order, but from a final judgment.                    Rule 29.3 provides

that:

        When an appeal from an interlocutory order is perfected, the
        appellate court may make any temporary orders necessary to preserve
        the parties' rights until disposition of the appeal and may require
        appropriate security.

(emphasis added).2

        "An interlocutory order, by definition, is one made pending the final

disposition of the merits of the case." Winfield v. Renfro, 792 S.W.2d 524, 525

(Tex. App. - Houston [1st Dist.] 1990, no writ). See also Infonova Solutions, Inc.

v. Griggs, 82 S.W.3d 613, 616 (Tex. App. - San Antonio 2002, no pet.) (quoting

City of Corpus Christi v. Pub. Util. Comm'n, 572 S.W.2d 290, 297 (Tex. 1978))

("An interim or interlocutory order is by definition an order made pending the

cause, before a final disposition on the merits."); Black's Law Dictionary (10th ed.



        2
          It is telling that, while purporting to seek relief to protect this Court's jurisdiction, Audi
relies on a rule designed to benefit the parties to an appeal.


                                                  11
2014) (defining an "interlocutory order" as "[a]n order that relates to some

intermediate matter in the case; any order other than a final order.").

       By contrast, a "final order" is "[a]n order that is dispositive of the entire

case." Black's Law Dictionary (10th ed. 2014). "A judgment that finally disposes

of all remaining parties and claims...is final, regardless of its language." Lehmann

v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). Further, "[a] judgment that

actually disposes of every remaining issue in a case is not interlocutory merely

because it recites that it is partial or refers to only some of the parties or claims....

The language of an order or judgment cannot make it interlocutory when, in fact,

on the record, it is a final disposition of the case." Id.

       Here, the orders being appealed are "final orders" because they dismissed

"Plaintiff's claims" against the ALJs and "all claims" against Chairman Walker.3

Because Audi's claims against the ALJs and Walker were the sole claims in the

lawsuit, the April 30th orders together constitute a final judgment. Audi has

       3
           Intervenors' presence in the district court case does not affect the finality analysis. "If
an order disposes of all issues in a case, then it necessarily disposes of all parties to a case, and
vice versa." Kaigler v. Gen. Elec. Mortg. Ins. Corp., 961 S.W.2d 273 (Tex. App. - Houston [1st
Dist.] 1998, no writ) (summary judgment order's failure to mention intervenors by name did not
preclude order from being "final); Quebodeaux v. Lundy, 977 S.W.2d 465, 467 (Tex. App. -
Tyler 1998, no pet.) ("The mere existence of other parties who have not been mentioned in the
final judgment does not preclude it from being a final judgment."). The district court's April
30th orders disposed of all claims against the defendants. Audi had no claims against
Intervenors (and Intervenors had no claims against Audi), and Intervenors' plea to the
jurisdiction sought the same relief Walker and the ALJs sought – dismissal of the claims against
Walker and the ALJs for lack of jurisdiction. There being no more "issues" involved in the case
(i.e. no claims, counterclaims, cross-claims, third-party claims, or other issues that required court
guidance), the order necessarily disposed of "all parties," including Intervenors.


                                                 12
affirmatively stated as much. In its docketing statement, which Audi has not

amended, Audi states that the judgment or order being appealed from "disposes of

all parties and issues," is a "final judgment," and that the case was disposed of by

"Dismissal."      As another "basis for finality," Audi states in the docketing

statement: "All claims against all defendants dismissed in order granting plea to the

jurisdiction."4 Moreover, in its Motion, Audi recognizes the finality of the district

court judgment, characterizing its appeal as one "seek[ing] to overturn the [district

court's] erroneous grant of [the] Pleas to the Jurisdiction and the resulting dismissal

of Audi's district court lawsuit." (Motion at ¶ 3.) Because Audi is appealing from

a final judgment, and not an interlocutory order, Rule 29.3 and the cases construing

that rule are immaterial to this motion.

       Audi also invokes Tex. R. App. P. 46.3. But that rule does not provide for

the injunctive relief Audi seeks and cannot be used to avoid compliance with Rule

52. Rule 46.3 is used primarily for suggesting a "remittitur" of a damages award.


       4
          Audi's docketing statement is replete with errors. As noted, supra, Audi affirmatively
stated that it would not seek the very relief it seeks in the motion presently before this Court.
Additionally, in Section V, Audi asserts that this is an "interlocutory appeal of appealable order."
Audi cites as authority for its appeal Tex. Civ. Prac. & Rem. Code § 51.014(8), which permits a
party to appeal from an "interlocutory order" in certain situations. But Audi then admits that "all
claims against all defendants" were dismissed (which is correct). Audi also asserts that this is an
"accelerated appeal," although it does not fall within any of the bases for such an appeal under
Tex. R. App. P. 28. Similarly, Audi's indication in the docketing statement that this appeal
should receive preference or precedence because it is an "accelerated appeal" is incorrect.
Notably, although ¶ 39 of the Court's "Practice Before the Third Court of Appeals" stresses the
need for accuracy in the docketing statement, and Tex. R. App. P. 32.3 provides an avenue for
correcting the docketing statement, Audi has made no effort to do so.


                                                13
See, e.g., Corral-Lerma v. Border Demolition v. Envt'l Inc., 2015 WL 2265082, at

*10 (Tex. App. - El Paso 2015, no pet.) ("We possess the inherent power in a civil

case to suggest a remittitur under Tex. R. App. P. 46.3...."); Bennett v. Grant, 2015

WL 1324857, at *24, n.29 (Tex. App. - Austin 2015, pet. pending) (noting party

filed remittitur per Rule 46.3); LaBranche v. State, 2014 WL 3411207, at *7 (Tex.

App. - Austin 2014, no pet.) (citing Tex. R. App. P. 46.3 as support for statement

that appellate court "can modify incorrect judgments").

      Occasionally, appellate courts will invoke Rule 46.3 to issue other, non-

substantive orders. See, e.g., In re R.W.G., 2003 WL 1564310, at *3 (Tex. App. -

Fort Worth 2003, no pet.) (directing trial court to modify judgment to include

appellant's thumbprint); Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 881-82 (Tex.

App. - Austin 2002, no pet.) (authorizing severance of a part of a claim for remand

to the trial court); In re Guardianship of Whitcomb, 69 S.W.3d 826, 829 (Tex.

App. - Corpus Christi 2002, no pet.) (ordering trial court and parties "to conduct

the proceedings on remand without delay and as expeditiously as possible").

      Audi cites no case in which Rule 46.3 is the basis for granting injunctive

relief or a stay on appeal (and the undersigned cannot find such a case). That is

because injunctive relief must be sought in an original proceeding under Rule 52

when, as here, a final judgment has been rendered.




                                         14
       B.     Audi Is Not Entitled To The Relief Actually Sought, Which Is A
              Writ Of Injunction.
       Section 22.221(a) of the Texas Government Code provides that courts of

appeal "may issue" writs necessary to enforce their jurisdiction, including writs of

injunction "to preserve the subject matter of a pending appeal or if a failure to grant

relief would result in the appeal becoming moot." In re Place, 2010 WL 1817780,

at *1 (Tex. App. - San Antonio 2010, orig. proceeding). The substance of Audi's

Motion shows that the relief Audi seeks is a writ of injunction under § 22.221(a).5

Such relief must be sought in compliance with Rule 52.

              1.      Audis' Motion Should Be Dismissed For Failure To Comply
                      With Rule 52.
       Rule 52 sets forth the requirements for an "original proceeding," which

includes a petition for writ of injunction.           "An original appellate proceeding

seeking extraordinary relief – such as a writ of...injunction ...– is commenced by

filing a petition with the clerk of the appropriate appellate court." Tex. R. App. P.

52.1. The petition "must" contain the sections and information detailed in Rule

52.3, including an appendix containing a certified or sworn copy of any order



       5
          "It is well settled that in determining the nature of a pleading, [courts] look to the
substance of the plea for relief, not merely the form or title given to it." Rush v. Barrios, 56
S.W.3d 88, 93 (Tex. App. - Houston [14th Dist.] 2001, pet. denied) (analyzing motion for "fee
forfeiture" as motion for JNOV despite appellees' misnomer of same). As such, "in determining
the nature of relief or action sought by the party[, the] nomenclature of the motion is not
controlling..." Susanoil, Inc. v. Continental Oil Co., 516 S.W.2d 260, 263 n.4 (Tex. Civ. App. -
San Antonio 1973, no writ).


                                              15
complained of and the text of all rules, regulations, statutes, and other law on

which the argument is based. See id. at (k).

      Appellate courts routinely dismiss petitions seeking extraordinary relief that

fail to comply with Rule 52's requirements. See, e.g., In re Johnson, 2012 WL

5059838, at *1 (Tex. App. - Amarillo 2012, orig. proceeding) (denying mandamus

relief where petition "wholly fail[ed] to comply with" Rule 52.3); In re Ince, 2011

WL 6032718, at *1 (Tex. App. - Amarillo 2011, orig. proceeding) (denying pro se

relator's petition for writ of mandamus for failure to comply with various subparts

of Rule 52.3); In re Dyer, 2010 WL 3795893, at *1 (Tex. App. - Houston [14th

Dist.] 2010, orig. proceeding) (denying petition for writ of prohibition and

injunction because, inter alia, relator did not comply with Rules 52.3(k) and 52.7);

In re Palmore, 2005 WL 1979076, at *1 (Tex. App. - Amarillo 2005, orig.

proceeding) (denying petition for writ of mandamus that failed to include the

"mandatory contents" for such a petition, including subparagraphs (a), (b), (c), and

(j) of Rule 52.3); In re Brown, 2003 WL 1563987, at *1 (Tex. App. - El Paso 2003,

orig. proceeding) (citing Rule 52.3 and dismissing petition where petition was

"insufficient").

      Here, Audi's Motion for Temporary Relief should be dismissed because

Audi did not initiate an "original proceeding," much less comply with Rule 52's




                                        16
mandatory requirements.6         In particular, Audi failed to name as parties "a[ll]

persons whose interests would be directly affected by the relief sought." See Tex.

R. App. 52.2. The glaring omission is the Board. Although Audi seeks to enjoin

the Board from taking any further action on the Protest or entering a final order,

see, e.g., Audi's Motion at ¶ 13 (complaining that "the Board could enter a decision

based on th[e] PFD before September"), Audi's petition names only the Board's

Chairman, Walker, and not the Board itself, or the six other Board members who

voted to remand the contested case proceeding to SOAH for further findings. Any

argument that only the Chairman is a proper party is frivolous. The seven Board

members present on February 13, 2015 – a quorum – voted to remand the

contested case to SOAH. The Remand Order was signed by Walker on behalf of

the Board, not himself.        The ALJs will send their supplemental or amended

proposal for decision to the "referring agency" (i.e. the Board), not to Walker. 1

T.A.C. § 155.507(b). And, when a final order is issued, it will be the Board's

order, not the order of its Chairman. See, e.g., 43 T.A.C. § 215.55(c) (stating that

"the Board" has "final order authority" in a contested case filed under Chapter 2301

of the Code).




       6
         There is also no indication that Audi paid the fee required for an original proceeding.
See Practice Before the Third Court of Appeals at ¶18(b) (specifying $145 fee for "original
proceeding").


                                              17
      Also, although Audi served the Motion for Temporary Relief on counsel for

Intervenors, none of the Intervenors is listed as an appellee or respondent in the

caption of the Motion or listed as a party to the proceeding as required by Rule

52.3(a). In fact, one of the intervenors, Budget (the party whose Protest Audi is

seeking to stay/enjoin), is not mentioned anywhere in the entire Motion, and the

certificate of conference does not reflect that Audi's counsel conferred with

Budget's counsel before filing the Motion.

      Audi's failure to comply with Rule 52 and to name all "real parties in

interest" as parties to this proceeding is fatal to its request for injunctive relief.

Therefore, Audi's Motion for Temporary Relief should be denied.

             2.    An Injunction Is Not Necessary To Preserve The Subject
                   Matter Of The Appeal.
      "The courts of appeals have limited injunctive powers[,]" and may issue

writs of injunction only to protect their jurisdiction over the "subject matter" of a

pending appeal or to prevent a lower court's unlawful interference with the

appellate court's judgments. In re Smith, 2004 WL 254079, at *1 (Tex. App. -

Waco 2004, orig. proceeding). Appellate courts do not have the authority to issue

injunctions to "preserve the status quo pending appeal" from a final judgment or

"merely to protect a party from damage pending appeal" from a final judgment. In

re Lasik Plus of Texas, P.A., 2013 WL 816674, at *1 (Tex. App. - Houston [14th

Dist.] 2013, orig. proceeding) (rejecting appellant's argument, in appeal from


                                         18
denial of motion for injunctive relief against former employee subject to non-

compete agreement, that writ of injunction was necessary to protect appellant's

market share during pendency of appeal).

      A writ of injunction is also improper where the party seeking the injunction

has another adequate remedy. In Holloway v. Fifth Court of Appeals, 767 S.W.2d

680, 684 (Tex. 1989), the Texas Supreme Court stated:

      The issuance of an extraordinary writ is not authorized when the
      relator has an adequate remedy by appeal. As the name implies,
      extraordinary writs issue only in situations involving manifest and
      urgent necessity and not for grievances that may be addressed by
      other remedies.

Id. (citations omitted).

      In this case, Audi has a variety of remedies available to it other than the

extraordinary remedy of a writ of injunction. To begin with, when this matter

again comes before the Board, Audi can argue that the remand was improper and

its results should be disregarded in formulating the Board's final order in the

Protest. If the Board rejects that argument and issues an order upholding the

Protest, then Audi can challenge the ALJs' and Walker's actions in a suit for

judicial review of the Board's final order. Section 2001.171 of the Tex. Gov't Code

provides that "[a] person who has exhausted all administrative remedies available

within a state agency and who is aggrieved by a final decision in a contested case

is entitled to judicial review under this chapter." Such a review is conducted under



                                        19
the "substantial evidence rule," Tex. Occ. Code § 2301.751, which specifically

provides for the assertion of claims that "the administrative findings, inferences,

conclusions or decisions are...(B) in excess of the agency's statutory authority; [or]

(C) made through unlawful procedure." Tex. Gov't Code § 2001.174(2)(B) & (C).

      That Audi might suffer damage or inconvenience while awaiting such relief

is of no moment. See, e.g., In re Lasik Plus of Texas at *2 (declining to issue writ

where trial court's ruling "would result in only damages or inconvenience to"

relator); In re Smith, 2004 WL 254079, at *1 (declining to issue writ to "preserve

the status quo" and "prevent hardship to" relator). Furthermore, as discussed

below, any inconvenience or damage is the result of Audi's own inexcusable delays

in seeking injunctive relief from the courts.

      This case is distinguishable from cases in which appellate courts have

granted writs to "protect their jurisdiction." In the vast majority of cases, writs of

injunction are issued to prohibit the sale, destruction, or other disposition of

tangible real or personal property while a party is challenging the propriety of the

trial court's denial of injunctive relief in a lawsuit involving that property. See,

e.g., Collier v. Cent. Nat'l Bank, 564 S.W.2d 828 (Tex. Civ. App. - Austin 1978,

orig. proceeding) (enjoining bank and trustee from proceeding with sale of

property while court heard appeal from district court's refusal to grant a temporary

injunction); Carpenter v. Hausman, 601 S.W.2d 88 (Tex. Civ. App. - San Antonio



                                          20
1980, orig. proceeding) (entering injunction after trial court's denial of injunctive

relief regarding sale of certain properties; trustee's sale of property, if

consummated, would render appeal moot); Sonny Arnold, Inc. v. Sentry Sav. Ass'n,

602 S.W.2d 90, 92 (Tex. Civ. App. - Amarillo 1980, orig. proceeding) (writ of

injunction issued to prevent trustee's sale of land because sale of land was the

subject matter of the appeal); Beall v. Strake, 602 S.W.2d 394, 395 (Tex. Civ. App.

- Austin 1980, orig. proceeding) (injunction would issue to prohibit party from

filing articles of dissolution of corporation pending outcome of appeal).

      In those cases, the subject matter of the appeal was intertwined with the

actual merits of the underlying case – the need for injunctive relief to prevent

irreparable harm. Unless an injunction was issued, the "subject matter of the

appeal" (a home, land, personal property, etc.), would be disposed of to the

irreparable injury of the appellant. That is not the case here – this case is in an

entirely different procedural posture. Audi's appeal does not arise from a final

decision in the underlying Protest. Rather, it concerns an ancillary proceeding

complaining of alleged procedural irregularities in the taking of additional

evidence on matters at issue in a protest that the Board unquestionably has

exclusive original jurisdiction to hear and decide. As noted above, the relief Audi

ultimately seeks – an order holding that the remand was unauthorized – can be

obtained by Audi from the Board itself or from a district court in a suit for judicial



                                         21
review of an adverse final order. An injunction from this Court is not necessary for

Audi to obtain that relief.

       Furthermore, an injunction in favor of Audi would amount to an improper

"advance determination of the merits of the appeal in an original proceeding."

Baird v. Sam Houston Elec. Co-op., 627 S.W.2d 732 (Tex. App. - Houston [1st

Dist.] 1981, no writ) (declining to issue writ).                 See also Yturria Town &

Improvement Co. v. Hidalgo Cty., 114 S.W.2d 917, 918 (Tex. Civ. App. - San

Antonio 1938, no writ) (appellate courts lack the power to issue a writ of

injunction where such relief "is, simply and only, the relief sought and denied

below."). If an injunction against further remand proceedings is granted, Audi

would receive the relief it unsuccessfully sought in the trial court – a temporary

injunction – without ever having proved, and in the absence of, an entitlement to

such extraordinary relief (and despite the fact that its lawsuit seeking that relief

was dismissed for lack of jurisdiction).7 That result would be woefully inequitable



       7
          In its Motion, Audi cites several cases for the unremarkable proposition that, in certain
circumstances, litigants can be excused from exhausting their administrative remedies prior to
filing suit in district court. (Motion at ¶ 9.) In many of the cases cited by Audi, however, the
appellate court found the litigants were not so excused. For example, like Audi in this case, the
plaintiffs in Appraisal Review Bd. of Harris Cty. Appraisal Dist. v. O'Connor & Assocs., 267
S.W.3d 413 (Tex. App. - Houston [14th Dist.] 2008, no pet.) alleged that they were excused from
exhausting their administrative remedies because the defendant Board was not complying with
the procedural requirements of the Tax Code. The Court rejected that argument, holding that the
ultra vires exception applies only when an agency acts "wholly outside its jurisdiction," and not
when it merely "fails to meet certain statutory procedural requirements." Id. at 419. See also
Mag-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617 (Tex. App. - Austin 2005, pet.
denied) (affirming dismissal for lack of jurisdiction; taxpayers not excused from exhausting

                                                22
to Intervenors. It would indefinitely halt the ongoing statutorily mandated process

for dealing with dealer/manufacturer disputes before the Board, and further delay

the closing of the underlying transaction – an almost $70 million acquisition that

has been pending since December 20, 2012.

       Moreover, an order granting the relief sought by Audi would create a

dangerous precedent. The district court (quite properly) dismissed for lack of

jurisdiction Audi's claim that the defendants were engaging in ultra vires acts.

Thus, there is no proof in the record of the elements essential for obtaining

temporary injunctive relief in the district court.             Litigants in contested case

proceedings frequently complain that state agencies are acting outside their

statutory authority and that exhaustion of administrative remedies should not be

required before seeking judicial relief from alleged ultra vires acts. Of course, "the

mere claim" of an ultra vires act "does not authorize litigation before

administrative remedies are exhausted," City of Houston v. Williams, 99 S.W.3d

709, 717 (Tex. App. - Houston [14th Dist.] 2003, no pet.), and such claims are

usually dismissed for want of jurisdiction. But if such litigants can obtain an

appellate injunction halting an agency proceeding by simply appealing a dismissal

for lack of jurisdiction and asserting that the agency is acting ultra vires and that


administrative remedies despite claim that such remedies were "inadequate" and would cause
"irreparable injury"); City of Houston v. Williams, 99 S.W.3d at 717 (firefighter was required to
exhaust administrative remedies prior to filing suit in district court).


                                               23
the appeal might become moot, then they are obtaining the desired result without

complying with either the exhaustion requirement, or the requirement that they

establish the elements essential for obtaining injunctive relief in the district court.

Allowing such an end run around the basic legal requirements designed to

safeguard the administrative process is an invitation to abuse. The appellate courts

will be flooded with requests for such injunctive relief. The result would be a

massive disruption of the State's administrative process, a violation of the principle

of separation of powers, and an expensive waste of resources.

      Such attempts to circumvent the proper judicial process for reviewing

agency action are especially troublesome when, as here, the subject matter of the

Protest falls squarely within the Board's exclusive original jurisdiction – a fact

Audi has never denied – and when Audi complains only of specific acts taken by

the Board and SOAH within the scope of that jurisdiction. Indeed, the district

court correctly held that such acts are not ultra vires as a matter of law.

             3.     Audi's Assertion That The Remand Proceeding Will Be
                    Completed Prior To This Court's Disposition Of Audi's
                    Appeal Is Speculative.
      Assuming, arguendo, that Audi's motion is not subject to denial for any of

the foregoing reasons and that Audi would otherwise be entitled to a writ of

injunction, Audi has failed to meet its burden of demonstrating that the requested

relief is necessary to protect this Court's jurisdiction.



                                           24
      Audi contends that "mootness is a legitimate concern ... because the remand

could be completed before this Court reaches the merits of this appeal." (Motion

at ¶ 12.    See also id. at 13 ("the Board could enter a decision ...before

September.").) In other words, Audi can only speculate that the remand will be

finalized before this Court reaches the merits of its appeal. However, it is just as

possible that the remand will not be finalized by such time. According to the

ALJs, the record at SOAH closed on June 16, 2015. The ALJs now have to issue a

proposal for decision and have a non-mandatory sixty-day period in which to do

so. Tex. Gov't Code § 2001.143(a). After the proposal for decision issues, there is

a thirty-day period for exceptions and replies to exceptions.           1 TAC §

155.507(c)(1).   Then, the ALJs must review the exceptions and replies to

exceptions to determine whether any changes to the proposal for decision are

necessary (and there is no set time period in which they must do so). Id. at (d).

After such changes, if any, are made, the contested case is passed on to the Board.

Only then can Intervenors request that the Protest be put on the Board's agenda.

Depending upon when the proposal for decision is referred to the Board relative to

when the Board has another scheduled meeting, it could take up to a month before

Intervenors can be heard at a Board meeting. Once the Board issues a final order,

there is then a twenty-day motion for rehearing period, see Tex. Gov't Code

2001.146(a) & (b), and the Board has forty-five days during which to rule upon



                                        25
any motions for rehearing. Id. at (c). The Board may even extend its time to rule

on such motions until the ninetieth day after the entry of a final order. Id. at (e).

      The Texas Supreme Court addressed the impropriety of granting injunctive

relief when the alleged possibility of the destruction of the subject matter of an

appeal is, at most, speculative, in Ammex Warehouse Co. v. Archer, 381 S.W.2d

478 (Tex. 1964). In that case, a group of relators sought an order allowing them to

continue to operate their retail liquor establishments – which the State contended

were not being operated in accordance with Texas law – during the pendency of

the appeal. The relators contended that their businesses would be "destroyed" in

the absence of such an order. The Supreme Court was not convinced, stating:

      While the business of relators may be damaged or, as they say, need
      to be reconstructed after the pending litigation is terminated in their
      favor (if such be the final result), it is difficult to see that this would
      destroy the subject matter of the litigation, namely, the asserted right
      to do business free of state regulation ...Should they be required for a
      while to operate in accordance with state law, the subject matter of the
      litigation would not be destroyed. At most, a fact issue is raised
      which this Court cannot decide...

381 S.W.2d at 484. See also In re Bailey, 296 S.W.3d 859, 862-83 (Tex. App. -

Tyler 2009, orig. proceeding) (appellate courts will not issue writs unless the threat

of jurisdictional interference is "real" and not a "mere possibility").

      In sum, there is no way to accurately predict when a final order will be

issued in the underlying contested case and, as noted by the Texas Supreme Court

in Ammex Warehouse, the mere possibility that the subject matter of an appeal


                                          26
might become moot is insufficient to entitle an appellant to a writ of injunction.

Because Audi cannot meet is burden of establishing that it is entitled to the

extraordinary relief sought, its Motion is due to be denied.

      C.     Audi's Own Conduct Militates Against The Relief Sought And
             The Asserted Necessity Of Such Relief.
      "Equity aids the vigilant, not those who slumber on their rights."          Los

Angeles Heights Indep. Sch. Dist. v. Chestnut, 287 S.W. 693, 694 (Tex. Civ. App.

- San Antonio 1926, no writ). Parties seeking equitable relief, such as injunctions,

are bound to show that they used "diligence" in applying for it. Id.

       "Any delay that places the party sought to be restrained in a worse position

than if there had been prompt action, and lulled him by inaction to expend money

which might have been averted by prompt action, may defeat the remedial right."

Id. See also Hall v. Stevens, 254 S.W. 610, 612 (Tex. Civ. App. - Dallas 1923, no

writ) (appellees' request for injunctive relief was barred by laches since subject of

relief – the construction of a cottage – was "already nearing completion"; "even if

it were conceded a right to the relief ever existed ...equity will not grant the harsh

remedy the mandatory injunction...imposes, when those who seek it fail to exercise

diligence in asserting it..."). A request for temporary injunctive relief can be

waived by failing to promptly seek it. Landry's Seafood Inn & Oyster Bar-Kemah,

Inc. v. Wiggins, 919 S.W.2d 924, 927 (Tex. App. - Houston [14th Dist.] 1996)

(affirming denial of temporary injunction where party seeking injunction was


                                         27
aware of alleged wrongful conduct for eight months and defendant had incurred a

number of expenses in the interim).

         Audi has delayed seeking injunctive relief at every stage of this proceeding.

The Board voted to remand this case on February 13, 2015, more than four months

ago. Audi delayed filing its Travis County Petition for almost six weeks. Audi's

application for a TRO was denied on March 26, 2015. Audi delayed requesting a

hearing on its Motion for Temporary Injunction for five weeks. After Audi's case

was dismissed on April 30th, Audi waited another week before it appealed the

dismissal.8 When it did, Audi affirmatively represented in its docketing statement

that it did not intend to seek extraordinary relief (e.g. temporary relief) from this

Court.       Then, Audi delayed another five weeks before filing its Motion for

Temporary Relief. Audi also requested (and received) a two-week extension of

time in which to file its brief on appeal.9

         In the meantime, Intervenors and the ALJs expended a massive amount of

time and resources on the remand proceedings. Between March 3, 2015 and April

15, 2015, extensive written discovery took place, five depositions were conducted,

motions for protective orders from discovery and motions to compel discovery


         8
          And, in its docketing statement, Audi indicated that it did not intend to seek
extraordinary relief (e.g. temporary or ancillary relief) from this Court.
         9
         Audi's brief initially was due June 17th and Audi obtained an extension of time in
which to file the brief until July 1st.


                                              28
were filed, privilege logs were created, experts were engaged, expert reports were

prepared, motions to strike experts were filed, witness and exhibit lists (and

objections to lists and responses to objections to lists) were filed, and the ALJs

issued nine written orders. Then, beginning April 16th, a two-day hearing was

held by the ALJs where six witnesses were called to testify. By June 15th (the date

Audi filed its Motion for Temporary Relief with this Court), the parties had filed

post-hearing briefs comprising more than 250 pages.

        Given that Audi waited six weeks to file its Travis County petition, then

waited five weeks to schedule a hearing on its Motion for Temporary Injunction,

then waited another week to appeal the dismissal of its case, then waited five more

weeks before filing the instant motion, and also requested additional time to file its

brief on appeal, Audi's contentions that time is of the essence and that an injunction

must issue rings hollow. If Audi truly believed that an injunction was necessary to

protect this appeal, Audi should not have waited so long to seek relief with the

district court and then this Court.

        Further, by its delay in asserting its purported right to injunctive relief, Audi

has rendered that relief almost entirely ineffective. At this point, the remand is

nearly completed. Nine-tenths of the work to be done by the ALJs, Intervenors,

and Audi (and, therefore, nine-tenths of the alleged harm to Audi) has already been

done.



                                           29
      D.     Audi Should Be Sanctioned Pursuant To Tex. R. App. P. 52.11.
      This Court is authorized, after notice and opportunity to heard, to impose

"just sanctions on a party or attorney who is not acting in good faith" as indicated

by, inter alia, "filing a petition that is clearly groundless," "bringing the petition

solely for delay of an underlying proceeding," or "grossly misstating or omitting an

obviously important and material fact in the petition or response..." Tex. R. App.

P. 52.11.

      Intervenors should be entitled to recover from Audi the costs and fees

incurred in responding to Audi's motion. The groundless, improperly supported

motion "grossly misstates or omits" at least one highly salient point, which is that

Audi is appealing from a final order and not an interlocutory order. Furthermore, it

is apparent the motion was not brought in good faith. It fails to comply with Rule

52, and it is yet another effort by Audi to hinder and delay the ultimate resolution

of the underlying contested case.

                       IV. CONCLUSION AND PRAYER
      Based on the foregoing, Intervenors respectfully request the Court to enter

an order denying the Motion for Temporary Relief, awarding Intervenors their

costs and fees incurred in filing this response, and entering such other, further, and

different relief that may be just and proper.




                                          30
      Respectfully submitted,



     /s/ Wm. R. Crocker
     Wm. R. Crocker
     State Bar No. 05091000
     807 Brazos, Suite 1014
     Austin, Texas 78767
     Telephone: (512) 478-5611
     Facsimile: (512) 474-2540
     Email: crockerlaw@earthlink.net

     Attorney for Intervenor/Appellee
     Budget Leasing, Inc. d/b/a Audi
     North Austin and Audi South Austin

     /s/ J. Bruce Bennett
     J. Bruce Bennett
     State Bar No. 0214550
     Leon V. Komkov
     State Bar No.11670500
     CARDWELL, HART & BENNETT,
     LLP
     807 Brazos, Suite 1001
     Austin, Texas 78701
     Telephone: (512) 322-0011
     Facsimile: (512) 322-0808
     Email: jbb.chblaw@sbcglobal.net
     Email: lvk@longroadllc.com

     Joseph W. Letzer
     Tx. State Bar No. 24030763
     Dent M. Morton
     Tx. State Bar No. 24056645
     BURR & FORMAN, LLP
     420 20th Street N, Suite 3400
     Birmingham, AL 35203-5210
     Telephone: (205) 251-3000
     Facsimile: (205) 458-5100


31
                                            Email: jletzer@burr.com
                                            Email: dmorton@burr.com

                                            Attorneys for Intervenors/Appellees
                                            Ricardo M. Weitz, Hi Tech Imports,
                                            LLC, Hi Tech Imports North, LLC,
                                            and Hi Tech Imports South, LLC


            CERTIFICATE OF COMPLIANCE WITH RULE 9.4

       Pursuant to Tex.R.App.P. 9.4(i)(3), the undersigned certifies this response
complies with the type-volume limitations of Tex R App P. 9.4. The brief was
prepared using Microsoft Word 2011. According to that program’s word count,
the brief contains 6,918 words, exclusive of the exempted portions in Tex.R.App.P.
9.4(i)(1).

                                     /s/ J. Bruce Bennett
                                        J. Bruce Bennett


                        CERTIFICATE OF SERVICE
       I hereby certify that on June 26, 2015, I used the Court's electronic case
filing system to file the foregoing document and to serve this document on the
following persons:

                  Billy M. Donley
                  Mark E. Smith
                  BAKER & HOSTETLER, LLP
                  1000 Louisiana, Suite 2000
                  Houston, Texas 77002
                  Tel: (713) 646-1382
                  Fax: (713) 751-1717
                  bdonley@bakerlaw.com
                  mesmith@bakerlaw.com

                  S. Shawn Stephens
                  James P. Sullivan
                  KING & SPALDING, LLP


                                       32
1100 Louisiana, Suite 4000
Houston, Texas 77002
Tel: (713) 751-3200
Fax: (713) 751-3290

      Attorneys for Volkswagen Group of America, Inc.
      and Audi of America, Inc.


Kimberly Fuchs
Texas Attorney General's Office
P.O. Box 12548
Austin, Texas 78711
Tel: (512) 475-4195
Fax: (512) 320-0167
kimberly.fuchs@texasattorneygeneral.gov
      Attorney for the Honorable Michael J. O'Malley
      and Penny A. Wilkov

Dennis McKinney
Texas Attorney General's Office
P.O. Box 12548
Austin, Texas 78711
Tel: (512) 475-4020
Fax: (512) 320-0167
dennis.mckinney@texasattorneygenreal.gov

      Attorney for Chairman John H. Walker

                         This the 26th day of June 2015.

                         /s/ J. Bruce Bennett
                         J. Bruce Bennett




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