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 th e Delaware Department of

Insurance. ACCEPTED 05-13-01505-CV FIFTH COURT OF APPEALS

DALLAS, TEXAS 1/8/2015 8:34:28 PM

LISA MATZ CLERKThe Court Appointed Receiver, The Insurance Commissioner of

Delaware, has apparently unilaterally redeemed a certificate of deposit

(CD) that was deposit ed 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 De partment 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belief, the certificate was redeemed and withdrawn from North Dallas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 Certific ate 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 Proc edure 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, Appe llant 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 relie f 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 miscarriag e 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,

T HE R OBERTS L AW F IRM

/s/ Sean A. Roberts

___________________________ Sean A. Roberts State Bar No. 00797328 T HE L USK H OUSE 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 8 th day of January , 2015

.

/s/Sean A. Roberts

___________________________ Sean A. Roberts