                                                                                  ACCEPTED
                                                                             05-13-01505-CV
                                                                   FIFTH COURT OF APPEALS
                                                                            DALLAS, TEXAS
                                                                         1/8/2015 8:34:28 PM
                                                                                  LISA MATZ
                                                                                      CLERK

                          NO. 05-13-01505-CV

                                                             FILED IN
                                                      5th COURT OF APPEALS
                   IN THE COURT OF APPEALS                DALLAS, TEXAS
                FOR THE FIFTH DISTRICT OF TEXAS       1/8/2015 8:34:28 PM
                           AT DALLAS                        LISA MATZ
                                                              Clerk


DALLAS NATIONAL                     §
INSURANCE COMPANY                   §
        Appellant,                  §
                                    §
v.                                  §
                                    §
CALITEX CORP.,                      §
ELSHIR ENTERPRISES, L.P.            §
and THOMAS L.P.                     §
         Appellees.                 §

             APPELLEE’S MOTION TO DISMISS APPEAL

TO THE HONORABLE JUSTICES OF THE SAID COURT:

      COMES NOW CALITEX CORP., ELSHIR ENTERPRISES, L.P. AND

THOMAS L.P. filing this Motion to Dismiss Appeal and as grounds

therefore would show this Court the following:

      The Appellees seek the extraordinary relief of dismissal of the

instant appeal filed by Dallas National Insurance Company due to

extraordinary circumstances. The Appellant, Dallas National Insurance

Company, has been ordered to liquidate by the Delaware Department of

Insurance.
      The Court Appointed Receiver, The Insurance Commissioner of

Delaware, has apparently unilaterally redeemed a certificate of deposit

(CD) that was deposited with the Dallas County Clerk in Lieu of a

Supercedeas Bond suspending enforcement of the judgment subject to this

appeal.

      On December 9, 2014 Counsel for Appellee learned that the

certificate of deposit was not on file with the Trust Department of the

District Clerk’s Office. Upon further research, and on information and

belief, the certificate was redeemed and withdrawn from North Dallas

Bank & Trust after the maturity date. The Receiver is apparently taking

the position that Certificate of Deposit is an asset of the liquidating estate.

      The Appellant’s withdrawal of the funds previously placed in trust

with the Dallas County Clerk’s office thwarts the purpose and spirit of the

appeal bond requirement under Texas Rule of Appellate Procedure 24.

The Appellee’s have clearly been harmed and prejudiced by the acts of the

Appellant because without posting the bond, Appellees had an

unequivocal right as of October 1, 2014 to enforce and collect the judgment.

Instead, Appellant caused Appellees to suspend collection of the judgment

because Appellant, through counsel, represented to the trial court that CD

has been “deposited with the clerk of the court in the amount of

$812,861.34 in accordance with TRAP 24.”
       Appellees want to file a motion for contempt in the trial court for

Dallas National’s counsel to show cause as to location of the proceeds that

were purportedly deposited in trust with the clerk of the court and other

reasonable relief.

       In addition to the relief sought in the trial court to determine the

whereabouts of the funds that were purportedly deposited in the clerk’s

office, Appellees seek the extraordinary relief of dismissal of the instant

appeal in an effort to mitigate further irreparable harm to the Appellees.

The Appellees should – at a minimum -- have the immediate right to

petition the Chancery Court of Delaware or the Receiver for payment of

the Final Judgment subject to this appeal. There is no other relief sufficient

under the circumstances to redress the clear miscarriage of justice that has

been carried out by the Appellant.

       WHEREFORE, PREMISES CONSIDERED, Appellees request that

the Court exercise its discretion to dismiss the instant appeal and for such

other and further relief to which the Appellee’s may show themselves

justly entitled.
                                    Respectfully Submitted,

                                    THE ROBERTS LAW FIRM

                                     /s/ Sean A. Roberts
                                    ___________________________
                                    Sean A. Roberts
                                    State Bar No. 00797328
                                    THE LUSK HOUSE
                                    2555 N. MacGregor Way, Suite 200
                                    Houston, Texas 77004
                                    (713) 630-0900
                                    (713) 630-0991 (fax)
                                    sr@therobertsfirm.com

                                 ATTORNEYS FOR PLAINTIFF


                     CERTIFICATE OF SERVICE

      The undersigned counsel hereby certifies that a true and correct
copy of Appellees’ Motion to Dismiss Appeal was served on opposing
counsel in accordance with the Texas Rules of Civil Procedure on the 8th
day of January, 2015.



                                     /s/Sean A. Roberts
                                    ___________________________
                                    Sean A. Roberts
