Alan Baron v. H. Joseph Acosta, and Acosta & Associates, P.C.

• Court: Court of Appeals of Texas
• Decided: January 22, 2015
• Docket: 05-14-01443-CV
• Status: Published

Opinion

ACCEPTED 05-14-01443-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 1/22/2015 10:30:02 AM LISA MATZ CLERK

NO. 05-14-01443-CV

IN THE COURT OF APPEALS FILED IN 5th COURT OF APPEALS FIFTH APPELLATE DISTRICT OF TEXAS DALLAS, TEXAS 1/22/2015 10:30:02 AM AT DALLAS LISA MATZ Clerk

ALAN BARON, APPELLANT

V.

H. JOSEPH ACOSTA AND ACOSTA & ASSOCIATES, P.C., APPELLEES

CAUSE NO. DC-14-08404-M

FROM THE 298TH DISTRICT COURT

DALLAS COUNTY, TEXAS

THE HONORABLE EMILY TOBOLOWSKI, PRESIDING JUDGE

APPELLANT ALAN BARON’S MOTION TO DISMISS APPEAL

LAW OFFICE OF MARK A. TICER Mark A. Ticer State Bar #20018900 mticer@ticerlaw.com Jennifer W. Johnson State Bar #24060029 jjohnson@ticerlaw.com 4144 N. Central Expressway Suite 1255 Dallas, Texas 75204 (214) 219-4220 (214) 219-4218 (FAX) COMES NOW, Alan Baron (“Baron”) Appellant herein, and files this

Appellant Alan Baron’s Motion to Dismiss (“Motion to Dismiss”) and would show

unto the Court the following:

I. BACKGROUND

This appeal surrounds the denial of a motion to dismiss by operation of law

pursuant to the Texas Citizens Participation Act. Baron’s brief is due on January

22, 2015. Appellees, H. Joseph Acosta and Acosta & Associates, P.C., have not

filed any brief or otherwise filed anything in this Court including any claim to any

relief.

This appeal surrounds only one of Appellees’ causes of action – defamation.

Appellees’ lawsuit remains pending in the trial court. Appellees have amended

their lawsuit, including the defamation claim. The defamation claim subject of this

appeal has been superseded by Appellees’ amended pleading.

II. MOTION TO DISMISS

Baron moves to dismiss his appeal pursuant to Rule 42.1 of the Texas Rules

of Appellate Procedure. Appellees have made no claim for affirmative relief or

asserted any cross appeal. No party will be prejudiced thereby.

Costs for the appeal should be taxed against Baron.

APPELLANT ALAN BARON’S MOTION TO DISMISS APPEAL Page 2 III. ARGUMENT AND AUTHORITIES

Rule 42.1 permits the voluntary dismissal of an appeal upon the motion of

an appellant where the dismissal would not prevent an opposing party from

seeking relief to which it would be otherwise entitled. Because no party will be

prevented from seeking relief to which they might be entitled (there is none and

none has been asserted), Baron’s Motion to Dismiss should be granted.

WHEREFORE, PREMISES CONSIDERED, Baron prays the Court grant

his Motion to Dismiss and the Court grant Baron such other and further relief to

which Baron may be entitled.

Respectfully submitted,

LAW OFFICE OF MARK A. TICER

By: /s/ Mark A. Ticer Mark A. Ticer State Bar #20018900 mticer@ticerlaw.com Jennifer W. Johnson State Bar #24060029 jjohnson@ticerlaw.com 4144 N. Central Expressway Suite 1255 Dallas, Texas 75204 (214) 219-4220 (214) 219-4218 (FAX)

APPELLANT ALAN BARON’S MOTION TO DISMISS APPEAL PAGE 3 ATTORNEYS FOR ALAN BARON

CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that a conference was attempted on the 19th day of January, 2015 by specifically inquiring of the Appellees if they were opposed to the relief being requested. The Appellees did not respond to Baron’s inquiry. Therefore, this matter is submitted to the Court for determination.

/s/ Mark A. Ticer Mark A. Ticer

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing has been served upon all counsel of record on this the 22nd day of January, 2015 as follows:

H. Joseph Acosta FACSIMILE State Bar No. 24006731 CERTIFIED MAIL Acosta & Associates, P.C. FIRST CLASS MAIL 3102 Maple Avenue, Suite 400 HAND DELIVERY Dallas, Texas 75201 EMAIL/E-FILING x Ph: 214-661-5789 Fax: 214-871-2005 Email: jacosta@acosta-law.com

APPELLANT ALAN BARON’S MOTION TO DISMISS APPEAL PAGE 4