Morningside Ministries D/B/A Morningside Ministries at the Manor and the Morningside Ministries Foundation, Inc. v. Rosa Lee Rodriguez, as Next Friend of Flora Mendez ( 2015 )

ACCEPTED
04-15-00049-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
12/9/2015 5:01:15 PM
KEITH HOTTLE
CLERK
Cause No. 04-15-00049-CV
Morningside Ministries, d/b/a Morningside § In the Court of Appeals
RECEIVED IN
Ministries at the Manor and the Morningside § 4th COURT OF APPEALS
Ministries Foundation, Inc., § SAN ANTONIO, TEXAS
Appellants, § 12/9/2015 5:01:15 PM
§ KEITH E. HOTTLE
—versus— Clerk
§ Fourth Court of Appeals District
§
Rosie Lee Rodriguez, as Next Friend of §
Flora Mendez, §
Appellee. § San Antonio, Texas FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
12/9/2015 5:01:15 PM
MOTION TO REINSTATE APPEAL ON ACCELERATED DOCKET
KEITH E. HOTTLE
Clerk
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES Appellee Rosie Lee Rodriguez, as Next Friend of Flora Mendez, and files
this motion asking that this Court reinstate this appeal on its accelerated docket, and would
respectfully show the Court as follows:
A. Factual and Procedural History
1. The case is on appeal from the 166th Judicial District Court, Bexar County, Texas.
2. The style and number of the case in the trial court was Rosie Lee Rodriguez, as Next
Friend of Flora Mendez v. Morningside Ministries, d/b/a Morningside Ministries at the Manor
and the Morningside Ministries Foundation, Inc., Bexar County District Court Cause No. 2014-
CI-07530.
3. This is an interlocutory appeal from an order denying a motion to dismiss filed under
section 74.351 of the Texas Civil Practice and Remedies Code. As such, this appeal is
accelerated. See, e.g., Laurel Ridge Hosp., L.P. v. Almazan, 374 S.W.3d 601, 603 (Tex. App.—
San Antonio 2012, no pet.).
4. The parties completed their briefing on October 23, 2015, when the Appellants filed their
Reply Brief.
5. While the parties prepared their briefing, they were also negotiating the terms of a
possible settlement. They believed they had reached a settlement, and on November 3, 2015,
filed an Agreed Motion to Abate Appeal to Finalize Settlement.
6. On November 4, 2015, this Court granted that motion, and abated the appeal for thirty
days. That abatement expired according to its own terms on December 4, 2015.
7. Unfortunately, the parties’ settlement negotiations have broken down, so Appellee Rosie
Lee Rodriguez, as Next Friend of Flora Mendez, respectfully requests that this Court reinstate
this appeal on its active docket.
B. Argument and Authorities
8. This Court has the authority to abate an appeal pending settlement. See, e.g., Tex. R.
App. P. 42.1(A)(2)(C); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659 (Tex.
1996). It logically follows that this Court has the authority to reinstate an appeal if the envisioned
settlement does not occur.
9. Under the terms of this Court’s own abatement order, the abatement has expired, so
Appellee’s request to reinstate this cause on the Court’s active docket is a mere formality.
10. Appellee Rosie Lee Rodriguez, as Next Friend of Flora Mendez, therefore respectfully
requests that this Court reinstate this appeal on its active docket.
C. Conclusion and Prayer
11. For the foregoing reasons, Appellee Rosie Lee Rodriguez, as Next Friend of Flora
Mendez, respectfully requests that this Court grant this Motion to Reinstate Appeal, and place
this cause on the Court’s active accelerated docket.
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Respectfully submitted,
/s/ Beth Watkins
Beth Watkins
State Bar No. 24037675
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666—phone
(210) 225-2300—fax
Beth.Watkins@WatkinsAppeals.com
COUNSEL FOR APPELLEE ROSIE LEE RODRIGUEZ, AS
NEXT FRIEND OF FLORA MENDEZ
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CERTIFICATE OF CONFERENCE
I hereby certify that on December 9, 2015, I conferred with Nissa M. Dunn, Counsel for
Appellant, on the substance of this motion. Ms. Dunn provided the following response on behalf
of her client:
Ms. Dunn understands that the 30-day abatement period has terminated, but
disagrees that settlement negotiations between the parties have failed. Ms. Dunn
bases her disagreement on the fact that Michael Peden, who previously mediated
the case, is currently assisting the parties in attempting to resolve the remaining
issues preventing final consummation of the settlement agreement.
/s/ Beth Watkins
Beth Watkins
CERTIFICATE OF SERVICE
I hereby certify that on December 9, 2015, a true and correct copy of the foregoing
Motion to Reinstate Appeal was electronically served on the following counsel of record:
Nissa M. Dunn
HOUSTON DUNN
4040 Broadway, Suite 440
San Antonio, Texas 78209
nissa@hdappeals.com
COUNSEL FOR APPELLANT
/s/ Beth Watkins
Beth Watkins
COUNSEL FOR APPELLEE ROSIE LEE
RODRIGUEZ, AS NEXT FRIEND OF FLORA MENDEZ
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