John Saenz & Associates, P.C. v. RGV Premier Scan LLC, Esmeralda Ramirez and Eder Leal

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00366-CV

JOHN SAENZ & ASSOCIATES, P.C., Appellant

v.

RGV PREMIER SCAN LLC, Esmeralda Ramirez and Eder Leal, Appellees

From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2016CVT000466 D4 Honorable Melissa Joy Garcia, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

Delivered and Filed: October 10, 2018

DISMISSED AS MOOT

In February 2016, John Saenz & Associates, P.C. sued its former employee Eder Leal, his

wife Esmeralda Ramirez, and their company, RGV Premier Scan LLC, for fraud, conspiracy to

commit fraud, and breach of fiduciary duty by Leal. In April 2016, Leal filed counterclaims against

John Saenz & Associates, P.C. for breach of his independent contractor agreement and theft of

services. On October 5, 2017, Leal added a counterclaim alleging that John Saenz & Associates,

P.C. had breached a settlement agreement from an unrelated car accident case, Fraga v. Saldana,

Cause No. 2015-CVT001217-C3. Because this settlement agreement included an arbitration

provision, on October 23, 2017, John Saenz & Associates, P.C. filed a motion to compel arbitration 04-18-00366-CV

of Leal’s new counterclaim and to stay the trial court proceedings. On June 1, 2018, the trial court

signed an order denying the motion. Trial was set for June 4, 2018. On June 1, 2018, John Saenz

& Associates, P.C. filed a notice of appeal, stating its intent to appeal the trial court’s order denying

the motion to compel arbitration, and an emergency motion in this Court to stay the June 4, 2018

trial setting. That same day, this Court granted the emergency motion and stayed the trial court

proceedings pending this interlocutory appeal.

After the clerk’s and reporter’s records were filed, John Saenz & Associates, P.C. filed its

appellant’s brief. Instead of filing their appellees’ brief, Appellees RGV Premier Scan LLC,

Esmeralda Ramirez, and Eder Leal filed a motion to dismiss this appeal, arguing that the

controversy is now moot because on September 5, 2018, Leal filed a “Sixth Amended Original

Counterclaim,” which removed his claim for breach of the Fraga settlement agreement. Appellees

argue that because Leal removed his counterclaim for breach of the Fraga settlement agreement,

no terms of that agreement are at issue in the underlying case, including the arbitration clause.

Thus, they request that we dismiss this appeal as moot. John Saenz & Associates, P.C. filed a

response to the motion to dismiss appeal, arguing that this issue fits within the “capable of

repetition, yet evading review” exception to the mootness doctrine because after this appeal is

dismissed, Leal could file a seventh amended counterclaim and include, once again, a claim for

breach of the Fraga settlement agreement. Alternatively, John Saenz & Associates, P.C. requests

that we tax costs of appeal against appellees.

Because the controversy in this appeal is now moot and we conclude the exception to the

mootness doctrine does not apply, we GRANT Appellees’ motion to dismiss. However, given the

facts in this appeal, we tax costs of appeal against Appellees RGV Premier Scan LLC, Esmeralda

Ramirez, and Eder Leal. See TEX. R. APP. P. 43.4.

PER CURIAM -2-