Austin Tele-Services LLC D/B/A Austin Tele-Services LP A/K/A ATS v. Futurenet GMBH

Opinion

ACCEPTED 03-15-00554-CV 6864486 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/10/2015 11:56:11 AM JEFFREY D. KYLE CLERK

03-15-00554-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD DISTRICT OF AUSTIN 9/10/2015 11:56:11 AM JEFFREY D. KYLE Clerk AUSTIN TELE-SERVICES LLC DBA AUSTIN TELE-SERVICES LP AKA ATS,

Appellant, v.

FUTURENET GMBH,

Appellee.

Restricted Appeal from Cause No. C-1-CV-15-003365, Futurenet GMBH v. Austin Tele-Services LLC dba Austin Tele-Services LP aka ATS, in the County Court at Law No. 1 of Travis, County, Texas

APPELLANT'S UNOPPOSED MOTION TO DISMISS APPEAL

Jillian J. Keith State Bar No. 24013671 Sara E. Inman State Bar No. 24073098 Lawrence A. Waks State Bar No. 20670700

Wilson, Elser, Moskowitz, Edelman & Dicker LLP 901 Main Street, Suite 4800 Dallas, Texas 75202 (214) 698-8000 (214) 698-1101 Facsimile September 10, 2015

Appellant's Unopposed Motion to Dismiss Appeal Page 1 of 4 2096156v.1 APPELLANT'S UNOPPOSED MOTION TO DISMISS APPEAL

1. Appellant filed notice of its restricted appeal on August 28, 2015. On August

31, 2015, Appellant and Appellee entered into a compromise agreement

regarding matters related to Appellee's claims and causes of action against

Appellant. As part of that compromise agreement, Appellant and Appellee

agreed to file a Joint Motion to Vacate Default Judgment and Writ of

Execution with the trial court.

2. The Joint Motion to Vacate and Agreed Order Granting the Motion to

Vacate Default Judgment and Writ of Execution were filed with the trial

court on September 1, 2015. The trial court judge signed the order on

September 8, 2015. A copy of the order is attached hereto as Exhibit A.

3. Pursuant to Texas Rule of Appellate Procedure 42.1, Appellant must file a

motion with the Court for dismissal. Under Rule 42.1(a)(1) "[i]n accordance

with a motion of appellant, the court may dismiss the appeal.....unless such

disposition would prevent a party from seeking relief to which it would

otherwise be entitled."

4. Appellant seeks an order from this Court dismissing Appellant's appeal.

5. Dismissal of the appeal would not prevent a party from seeking relief to

which it would otherwise be entitled. Appellant and Appellee agree that

dismissal of the appeal is in the interest of both parties.

Appellant's Unopposed Motion to Dismiss Appeal Page 2 of 4 2096156v.1 6. Because dismissal of the appeal would not prevent either party from seeking

relief to which they would be otherwise entitled, the Court should grant the

relief sought by this Motion to Dismiss Appeal.

7. Appellant and Appellee agree that each party shall bear its own costs.

8. Appellant and Appellee agree that the mandate should be issued early.

Respectfully submitted,

Wilson, Elser, Moskowitz, Edelman Dicker LLP

By: Lawren A. Waks State Bar No. 20670700 lawrence.waks@wilsonelser.com Jillian Keith State Bar No. 24013671 jillian.Keith@wilsonelser.corn Sara E. Inman State Bar No 24073098 sara.inman@wilsonelser.corn 901 Main Street, Suite 4800 Dallas, Texas 75202 (214) 698-8000 (214) 698-1101 Facsimile

Attorneys For Appellant

Appellant's Unopposed Motion to Dismiss Appeal Page 3 of 4 2096156v.1 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing instrument has been forwarded to Appelle's counsel of record via the Texas Rules of Civil Procedure on this the 10th day of September, 2015.

VIA FAX(512-264-3782) Michael G. Null State Bar No. 15134300 20209 W. HWY 71 Spicewood, TX 78669 (512) 264-1156

CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that she conferred with counsel for Appellee, Michael Null, on September 9, 2015 via phone. Counsel for Appellee supports the filing of this motion.

Sar . Inman

Appellant's Unopposed Motion to Dismiss Appeal Page 4 of 4 2096156v.1 CAUSE NO, C-1-CV-15-003365

FUTURENET GMBH, IN THE COUNTY COURT OF

Plaintiff,

vs„ AT LAWN°. 1 OF

AUSTIN TELE-SERVICES LLC dba AUSTIN TELE-SERVICES LP aka ATS,

Defendant, TRAVIS COUNTY, TEXAS

ORDER GRANTING JOINT MOTION TO VACATE DEFAULT JUDGMENT AND, WRIT OF EXECUTION

On this day came to be heard Plaintiff Futurenet GMBH and Defendant Austin Tele-

Services I,LC dba Austin Tele•Services LP aka ATS's Joint Motion to Vacate Default Judgment

and Writ of Execution, The Court, after considering all matters of record is of the opinion that

the motion is meritorious and should be GRANTED.

It is therefore ORDERED that the Default Judgment against Defendant Austin Tele-

Services LLC dba Austin Tele-Services LP aka ATS signed and entered of record on June 24,

2015, as well as the Writ of Execution, signed and issued on July 30, 2015, by this Court, is

hereby VACATED.

SIGNED:on. o 6-

Approved as toform:

LAW WALKS

2091092v,1 State Bar No 20670700 lawrence.waks@wilsonelser.coM JILLIAN KEITH State Bar No, 24013671 jillign,Kcitit(Wilaonelser,com SARA E. INMAN State Bar No 24073098 lara.itLrnala.,‘Yilsotielser,00m, 901 Main Street, Suite 4800 Dallas, Texas 75202 (214) 698-8000 (214) 6981101 Facsimile

ATTORNEYS FOR DEFXINDA T

AN

MICHAEL G. NULL State Bar No, 15134300 irmall&ait4spring,eorn 20209 W HWY 71 Spicewood, TX 78669 (512) 264-1156 (512) 2643782 Facsimile

ATTORNEY FOR PLAINTIFF

2091092v.1