NO. 05-13-01505-CV

IN THE COURT OF APPEALS

FOR THE FIFTH DISTRICT OF TEXAS

AT DALLAS

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. 

ACCEPTED

05-13-01505-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

1/8/2015 8:34:28 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 1/8/2015 8:34:28 PM LISA MATZ Clerk
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belief, the certificate was redeemed and withdrawn from North Dallas 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