Jason Rowell v. Firetrol Protection Systems ( 2015 )

ACCEPTED
12-15-00113-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/3/2015 12:09:23 PM
CATHY LUSK
CLERK
No.: 12-15-00113-CV
In The FILED IN
12th COURT OF APPEALS
Court of Appeals TYLER, TEXAS
7/3/2015 12:09:23 PM
CATHY S. LUSK
Clerk
TWELFTH DISTRICT OF TEXAS
Tyler, Texas
__________________________________________________________________
JASON ROWELL
Appellant,
v.
FIRETROL PROTECTION SYSTEMS
Appellee.
__________________________________________________________________
Appealed from 114th Judicial District Court of
Smith County, Texas, the Honorable Christi Kennedy, Presiding
__________________________________________________________________
JOINT MOTION FOR VOLUNTARY DISMISSAL WITH PREJUDICE OR
IN THE ALTERNATIVE MOTION TO WITHDRAW MOTION TO
RECONSIDER
__________________________________________________________________
Niles Illich
SBOT: 24069969
Law Office of Niles Illich, Ph.D., J.D.
701 Commerce Street, Suite 400
Dallas, Texas 75202
Telephone: (972) 802 − 1788
Facsimile: (972) 682 – 7586
Email: Niles@appealstx.com
ATTORNEY FOR APPELLANT
JASON ROWELL
__________________________________________________________________
IDENTITY OF THE PARTIES AND COUNSEL
__________________________________________________________________
Trial Judge: The Hon. Christi Kennedy
Appellant: Jason Rowell
Appellant’s Appellate Counsel: Niles Illich
Law Office of Niles Illich, Ph.D., J.D.
701 Commerce Street
Suite 400
Dallas, Texas 75202
Appellant’s Trial Counsel: Pro-se
Appellee: Firetrol Protection Systems
Appellee’s Trial/Appellate Counsel: Roger W. Anderson
Gillen and Anderson
613 Shelley Park Plz
Tyler, TX
ii
__________________________________________________________________
Joint Motion for Voluntary Dismissal with Prejudice
__________________________________________________________________
The parties, Jason Rowell and Firetrol Protection Systems ask this Court to
dismiss this appeal with prejudice or in the alternative to withdraw the pending
motion to reconsider.
Introduction
1. Jason Rowell (“Rowell”) is the Appellant and Firetrol Protection Systems
(“Firetrol”) is the Appellee.
2. The 114th Judicial District Court of Smith County resolved the underlying
case by dismissing it under the anti-SLAPP statute.
3. Appellant filed a notice of appeal on April 30, 2015.
4. Appellant filed a motion for new trial on April 29, 2015. This motion is
pending before the trial court. The parties have agreed to an order that would grant
the motion for new trial and then dismiss the case in the trial court.
Argument and Authorities
5. There is no specified deadline to file a motion for voluntary dismissal. 1
6. Rule 42.1(a)(1) permits an Appellant to file a motion requesting voluntary
dismissal and an appellate court to “dismiss the appeal or affirm the appealed
1
TEX. R. APP. P. 42.1.
3
judgment or order unless such disposition would prevent a party from seeking
relief to which it would otherwise be entitled.”2
7. An appellant is not required to explain his motivation for requesting the
voluntary dismissal nor is he required to sign the motion.3 But here both parties
seek a final dismissal because they have resolved the issues between them.
Motion to Withdraw Motion to Reconsider
8. This Court dismissed this case on June 3, 2015. On June 5, 2015, Appellant
filed a motion to reconsider. This Motion has not yet been ruled on. In the
alternative to dismissing this case for a second time, Appellant moves to withdraw
his motion to reconsider and to permit this Court’s opinion of June 3, 2015 to be
the final resolution of this appeal.
Conclusion and Prayer
9. Prayer
Appellant and Appellee have resolved the issues between them and seek to
end this appeal. Appellant asks this Court to dismiss the appeal with prejudice or
in the alternative to withdraw Appellant’s motion to reconsider and to permit the
Court’s opinion from June 3, 2015 to be the final resolution of this appeal.
2
Id. at 42.1(a)(1).
3
See generally id. (not requiring a party to show cause for seeking dismissal and signature
requirement relates only to criminal appeals).
4
Respectfully submitted,
/s/ Niles Illich
Niles Illich
The Law Office of Niles Illich, Ph.D., J.D.
701 Commerce
Suite 400
Dallas, Texas 75202
Direct: (972) 802-1788
Facsimile: (972) 236-0088
Email: Niles@appealstx.com
CERTIFICATE OF CONFERENCE
This is to certify that on July 1, 2015 that Roger Anderson, counsel for
Firetrol, agreed to the motion to dismiss.
/s/ Niles Illich
Niles Illich
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Motion was
served on:
Roger W. Anderson
Gillen and Anderson
613 Shelley Park Plz
Tyler, Texas
By electronic service before 5:00 PM on July 3, 2015.
/s/ Niles Illich
Niles Illich
5
CERTIFICATE OF COMPLIANCE
This is to certify that this motion complies with the length and style
requirements in Rule 9.4 of the Texas Rules of Appellate Procedure. The motion is
presented in Times New Roman font, size 14. The motion contains 684 words.
/s/ Niles Illich
Niles Illich
6