Dallas National Insurance Company v. Calitex Corp., Elshir Enterprises, L.P. and Thomas, L.P.

ACCEPTED
05-13-01505-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/8/2015 8:34:28 PM
LISA MATZ
CLERK
NO. 05-13-01505-CV
FILED IN
5th COURT OF APPEALS
IN THE COURT OF APPEALS DALLAS, TEXAS
FOR THE FIFTH DISTRICT OF TEXAS 1/8/2015 8:34:28 PM
AT DALLAS LISA MATZ
Clerk
DALLAS NATIONAL §
INSURANCE COMPANY §
Appellant, §
§
v. §
§
CALITEX CORP., §
ELSHIR ENTERPRISES, L.P. §
and THOMAS L.P. §
Appellees. §
APPELLEE’S MOTION TO DISMISS APPEAL
TO THE HONORABLE JUSTICES OF THE SAID COURT:
COMES NOW CALITEX CORP., ELSHIR ENTERPRISES, L.P. AND
THOMAS L.P. filing this Motion to Dismiss Appeal and as grounds
therefore would show this Court the following:
The Appellees seek the extraordinary relief of dismissal of the
instant appeal filed by Dallas National Insurance Company due to
extraordinary circumstances. The Appellant, Dallas National Insurance
Company, has been ordered to liquidate by the Delaware Department of
Insurance.
The Court Appointed Receiver, The Insurance Commissioner of
Delaware, has apparently unilaterally redeemed a certificate of deposit
(CD) that was deposited with the Dallas County Clerk in Lieu of a
Supercedeas Bond suspending enforcement of the judgment subject to this
appeal.
On December 9, 2014 Counsel for Appellee learned that the
certificate of deposit was not on file with the Trust Department of the
District Clerk’s Office. Upon further research, and on information and
belief, the certificate was redeemed and withdrawn from North Dallas
Bank & Trust after the maturity date. The Receiver is apparently taking
the position that Certificate of Deposit is an asset of the liquidating estate.
The Appellant’s withdrawal of the funds previously placed in trust
with the Dallas County Clerk’s office thwarts the purpose and spirit of the
appeal bond requirement under Texas Rule of Appellate Procedure 24.
The Appellee’s have clearly been harmed and prejudiced by the acts of the
Appellant because without posting the bond, Appellees had an
unequivocal right as of October 1, 2014 to enforce and collect the judgment.
Instead, Appellant caused Appellees to suspend collection of the judgment
because Appellant, through counsel, represented to the trial court that CD
has been “deposited with the clerk of the court in the amount of
$812,861.34 in accordance with TRAP 24.”
Appellees want to file a motion for contempt in the trial court for
Dallas National’s counsel to show cause as to location of the proceeds that
were purportedly deposited in trust with the clerk of the court and other
reasonable relief.
In addition to the relief sought in the trial court to determine the
whereabouts of the funds that were purportedly deposited in the clerk’s
office, Appellees seek the extraordinary relief of dismissal of the instant
appeal in an effort to mitigate further irreparable harm to the Appellees.
The Appellees should – at a minimum -- have the immediate right to
petition the Chancery Court of Delaware or the Receiver for payment of
the Final Judgment subject to this appeal. There is no other relief sufficient
under the circumstances to redress the clear miscarriage of justice that has
been carried out by the Appellant.
WHEREFORE, PREMISES CONSIDERED, Appellees request that
the Court exercise its discretion to dismiss the instant appeal and for such
other and further relief to which the Appellee’s may show themselves
justly entitled.
Respectfully Submitted,
THE ROBERTS LAW FIRM
/s/ Sean A. Roberts
___________________________
Sean A. Roberts
State Bar No. 00797328
THE LUSK HOUSE
2555 N. MacGregor Way, Suite 200
Houston, Texas 77004
(713) 630-0900
(713) 630-0991 (fax)
sr@therobertsfirm.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a true and correct
copy of Appellees’ Motion to Dismiss Appeal was served on opposing
counsel in accordance with the Texas Rules of Civil Procedure on the 8th
day of January, 2015.
/s/Sean A. Roberts
___________________________
Sean A. Roberts