Volkswagen Group of America, Inc. And Audi of America, Inc. v. John Walker III, in His Official Capacity as Chairman of the Texas Department of Motor Vehicles Board The Honorable Michael J. O'Malley, the Honorable Penny A. Wilkov, in Their Official Capacities as Administrative Law Judges for the State Office ( 2015 )

ACCEPTED
03-15-00285-CV
8308433
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/18/2015 3:30:40 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00285-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS12/18/2015 3:30:40 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
VOLKSWAGEN GROUP OF AMERICA, INC.
AND AUDI OF AMERICA, INC.
Appellants,
v.
JOHN WALKER III, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF
THE TEXAS DEPARTMENT OF MOTOR VEHICLES BOARD, AND THE
HONORABLE MICHAEL J. O’MALLEY AND THE HONORABLE
PENNY A. WILKOV, IN THEIR OFFICIAL CAPACITIES AS
ADMINISTRATIVE LAW JUDGES FOR THE STATE OFFICE OF
ADMINISTRATIVE HEARINGS,
Appellees.
On Appeal From the 201st District Court Travis County, Texas
Trial Court Cause No. D-1-GN-15-001186
Honorable Amy Clark Meachum, Presiding Judge
MOTION TO DISMISS APPEAL
TO THE HONORABLE THIRD COURT OF APPEALS:
1. Appellants ask the Court to dismiss this appeal.
2. Appellants are Volkswagen Group of America, Inc. and Audi of
America, Inc. Appellees are John Walker III, in his official capacity as Chairman
of the Texas Department of Motor Vehicles Board and the Honorable Michael J.
O’Malley and the Honorable Penny A. Wilkov, in their official capacities as
Administrative Law Judges for the State Office of Administrative Hearings.
3. Appellants perfected this appeal on May 8, 2015, by filing a Notice of
Appeal. Appellees do not seek relief in this appeal and do not oppose this motion.
4. Appellants are the only parties seeking relief in this appeal.
5. The Court has authority under Tex. R. App. P. 42.1(a)(1) to grant this
Motion to Dismiss.
6. The Parties in the underlying administrative action styled Budget
Leasing, Inc. d/b/a Audi North Austin and Audi South Austin, Protestant, Ricardo
M. Weitz, Hi Tech Imports North, LLC, Hi Tech Imports South, LLC and Hi Tech
Imports, LLC, Intervenors and Volkswagen Group of America, Inc. and Porsche
Cars North America, Inc., Respondents, SOAH Docket No. XXX-XX-XXXX.LIC,
MVD Docket No. 13-0008 LIC have reached an agreement resolving their
differences in that protest before the Texas Department of Motor Vehicles, Motor
Vehicle Division. Resolution of the administrative action settles the matters at
issue in this appeal.
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7. Appellants ask the Court to render judgment dismissing this appeal
pursuant to Tex. R. App. P. 42.1(a)(1), with each party bearing its own attorneys'
fees, expenses and costs.
Respectfully submitted,
BAKER & HOSTETLER LLP
/s/ Billy M. Donley
Billy M. Donley
State Bar No. 05977085
Mark E. Smith
State Bar No. 24070639
811 Main Street, Suite 1100
Houston, Texas 77002
(713) 751-1600 (Telephone)
(713) 751-1717 (Facsimile)
bdonley@bakerlaw.com
mesmith@bakerlaw.com
COUNSEL FOR PLAINTIFFS
VOLKSWAGEN GROUP OF AMERICA,
INC. AND AUDI OF AMERICA, INC.
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CERTIFICATE OF CONFERENCE
As required by TEX. R. APP. P. 10.1, Appellants’ counsel conferred with
Appellees’ counsel regarding this Motion to Dismiss. Dennis McKinney, counsel
for Appellee John Walker III, Kimberly Fuchs, Counsel for Appellees Michael J.
O’Malley and Penn A. Wilkov, Dent M. Morton, counsel for Appellees Ricardo M.
Weitz; Hi Tech Imports North, LLC; Hi Tech Imports, South, LLC; and Hi Tech
Imports, LLC, and William R. Crocker, counsel for Intervenor Budget Leasing,
Inc. all indicated that their clients were unopposed.
/s/ Billy M. Donley
Billy M. Donley
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Motion to Dismiss Appeal
has been served in accordance with the Texas Rules of Appellate Procedure on the
counsel of record listed below on this the 18th day of December, 2015.
Kimberly Fuchs J. Bruce Bennett
kimberly.fuchs@texasattorneygeneral.gov jbb.chblaw@sbcglobal.net
Assistant Attorney General Cardwell, Hart & Bennett, LLP
Texas Attorney General’s Office 807 Brazos, Suite 1001
P.O. Box 12548 Austin, Texas 78701
Austin, Texas 78711-2548
Joseph W. Letzer
Counsel for Defendants Michael J. jletzer@burr.com
O’Malley and Penny A. Wilkov Burr & Forman, LLP
420 20th Street N., Suite 3400
Dennis McKinney Birmingham, AL 35203
dennis.mckinney@texasattorneygeneral.gov
Assistant Attorney General Counsel for Intervenors Ricardo M.
Texas Attorney General’s Office Weitz,
P.O. Box 12548 Hi Tech Imports North, LLC, Hi
Austin, Texas 78711-2548 Tech Imports
South, LLC and Hi Tech Imports,
Counsel for Defendant John Walker III LLC
Wm. R. Crocker
crockerlaw@earthlink.net
807 Brazos, Ste. 1014
Austin, Texas 78701
Counsel for Intervenor Budget
Leasing, Inc.
/s/ Billy M. Donley
Billy M. Donley
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