                                                                                      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.




                                        3
                                     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.




                                      4
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




  5
                            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




                                      6
                           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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