                                                                                                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


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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.


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      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


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                                          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




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                          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




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