Becky, Ltd. v. Milestone Community Builders, LLC The City of Cedar Park Matt Powell Stephen Thomas Mitch Fuller Lyle Grimes Lowell Moore Jon Lux And Don Tracy

Opinion

ACCEPTED 03-15-00071-CV 4219044 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/19/2015 4:23:41 PM JEFFREY D. KYLE CLERK

No. 03-15-00071-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE 2/19/2015 4:23:41 PM THIRD COURT OF APPEALS JEFFREY D. KYLE AUSTIN, TEXAS Clerk ____________________________________________________________

BECKY, LTD., Appellant

V.

MILESTONE COMMUNITY BUILDERS, LLC, THE CITY OF CEDAR PARK, STEPHEN THOMAS, MATT POWELL, MITCH FULLER, LYLE GRIMES, LOWELL MOORE, JON LUX, AND DON TRACY, Appellees _____________________________________________________________

ON APPEAL FROM THE 126TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS ______________________________________________________________

APPELLANT’S UNOPPOSED MOTION TO ABATE APPEAL FOR ENTRY OF FINAL JUDGMENT ______________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

Comes now Appellant, Becky, Ltd, and files this Motion to Abate Appeal

for Entry of Final Judgment and would respectfully show the Court as follows:

On December 23, 2014, the trial court signed an order granting certain of the

Appellees’ pleas to the jurisdiction. Incorrectly believing that this order disposed

AUS-6067305-1 521106/1 of all parties and all claims, and was thus a final judgment, Becky instituted this

regular appeal on January 30, 2015. It has now come to Appellant’s attention that

the appealed order is not yet final since it did not dispose of all claims and all

parties.

The remaining Defendant has asked the trial court to enter an order granting

its motion to dismiss as well, and Appellant anticipates that this order will be

entered shortly.

Pursuant to Texas Rule of Appellate Procedure 27.2, Appellant asks that this

Court allow the appealed order that is not yet final to be modified so as to be made

final, and give effect to this appeal as if it had been pursued after the final order is

signed and entered. Appellant asks that this Court abate this appeal until the final

order is signed. Appellant will promptly notify this Court when this occurs.

Appellant did not intend to and did not pursue an interlocutory appeal as to

the December 23 order, and does not waive its right to challenge that order after it

becomes final. In the event this Court denies this motion, Appellant will

voluntarily dismiss its premature appeal and pursue a new appeal after entry of a

final judgment.

Wherefore, Appellant requests that this Court abate this appeal pending

entry of final judgment by the trial court, or alternatively, allow Appellant to

2 AUS-6067305-1 521106/1 voluntarily dismiss this premature appeal and pursue a new appeal after entry of a

Respectfully submitted,

HUSCH BLACKWELL LLP

By /s/ Elizabeth G. Bloch ELIZABETH G. BLOCH State Bar No. 02495500 Heidi.bloch@huschblackwell.com 111 Congress Avenue, Suite 1400 Austin, Texas 78701-4093 (512) 472-5456 (Telephone) (512) 479-1101 (Facsimile)

Leonard B. Smith State Bar No. 18643100 lsmith@leonardsmithlaw.com P.O. Box 684633 Austin, Texas 78768 (512) 914-3732 (Telephone) (512) 532-6446 (Facsimile)

ATTORNEYS FOR APPELLANT

CERTIFICATE OF CONFERENCE

The undersigned certifies that she has consulted via email with counsel for Appellees, and they have indicated that Appellees do not oppose this motion.

/s/ Elizabeth G. Bloch ELIZABETH G. BLOCH

3 AUS-6067305-1 521106/1 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served on the 19th day of February, 2015, via the Court’s electronic filing system and/or email to the following counsel of record:

Cobby Caputo ccaputo@bickerstaff.com Bradley B. Young byoung@bickerstaff.com Bickerstaff Heath Delgado Acosta LLP 3711 South MoPac Expressway Building One, Suite 300 Austin, Texas 78746

Mark Hawkins mhawkins@abaustin.com Armbrust & Brown, PLLC 100 Congress, Suite 1300 Austin, Texas 78701

/s/ Elizabeth G. Bloch

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