Summary
granting motion to stay trial proceedings in appeal of interlocutory order denying motion to compel arbitration
Summary of this case from Advanced Found. Repair, L.P. v. MenendezOpinion
No. 04-18-00366-CV
10-10-2018
JOHN SAENZ & ASSOCIATES, P.C., Appellant v. RGV PREMIER SCAN LLC, Esmeralda Ramirez and Eder Leal, Appellees
MEMORANDUM OPINION
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 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 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