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 4595760 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/23/2015 10:43:17 AM JEFFREY D. KYLE CLERK

No. 03-15-00071-CV FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS THIRD COURT OF APPEALS 3/23/2015 10:43:17 AM AUSTIN, TEXAS JEFFREY D. KYLE ____________________________________________________________ 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 MOTION FOR VOLUNTARY DISMISSAL OF APPEAL ______________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellant, Becky, Ltd, files Appellant’s Motion for Voluntary Dismissal of

Appeal pursuant to TEX. R. APP. P. 42.1(a), and would respectfully show the Court

as follows:

Becky filed a notice of appeal on January 30, 2015, intending to appeal what

it believed to be a final judgment. It later came to Becky’s attention that the

judgment appealed from was not final since it did not dispose of all parties and all

AUS-6080685-1 claims. Becky then filed a Motion to Abate, asking for abatement in anticipation

that the trial court would soon enter another order dismissing the remaining claims.

This Court granted the Motion to Abate on March 4, 2015.

The trial court has now entered an order addressing the remaining claims,

but it did not dismiss those claims. Instead, the trial court denied the remaining

defendant’s motion to dismiss Becky’s claims against it. There is thus no final

judgment entered in the proceedings below, and this appeal is premature.

Becky therefore requests that this Court dismiss this appeal without

prejudice as untimely. Becky intends to file another appeal once the judgment

below becomes final.

Counsel for Appellee City of Cedar Park and the individual Appellees has

indicated that these Appellees do not oppose this motion. Counsel for Appellee

Milestone has not responded to inquiries about whether it opposes this motion.

WHEREFORE, Appellant requests that this motion be granted and that

Appellant’s appeal be dismissed without prejudice.

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

2 AUS-6080685-1 (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 the City of Cedar Park and the individual Appellees, and they have indicated that they do not oppose this motion. Counsel for Milestone has not responded to multiple inquiries about whether it opposes this motion.

/s/ Elizabeth G. Bloch ELIZABETH G. BLOCH

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served on the 23rd day of March, 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

3 AUS-6080685-1 Mark Hawkins mhawkins@abaustin.com Armbrust & Brown, PLLC 100 Congress, Suite 1300 Austin, Texas 78701

/s/ Elizabeth G. Bloch

4 AUS-6080685-1