IN THE

TENTH COURT OF APPEALS

No. 10-94-154-CV

     ONE STOP FOOD STORE, INC.,

                                                                                              Appellant

     v.

     JON C. ELROD,

                                                                                              Appellee

From the County Court at Law No. 2

Collin County, Texas

Trial Court # 2-65-94

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      One Stop Food Store, Inc., Appellant, and Jon C. Elrod, Appellee, have filed an agreed motion to dismiss this appeal pursuant to Rule 52 of the Texas Rules of Appellate Procedure. They state in their motion that they have settled their dispute and that the trial court has modified its judgment pursuant to Rule 329 of the Texas Rules of Civil Procedure. Thus, according to their sworn motion, the judgment appealed from is no longer the controlling judgment in this cause.

      The motion is granted and the appeal is dismissed with the costs of appeal to be borne by the party incurring same.

                                                                               PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

      Dismissed

      Order issued and filed May 25, 1994

      Do not publish

-family:"CG Times"'>A dismissal of the earlier appeal would confirm the propriety of the arguments for dismissal in my earlier dissenting opinion but would now make a mockery of the rules of appellate procedure.  Given the current posture into which the majority forced these parties, I would apply the rules by filing the new notice of appeal in the original docket number, 10-06-00237-CV, and administratively close appeal 10-06-00415-CV. 

          The notice to the parties to show grounds for continuing this appeal, 10-06-00237-CV, would be unnecessary if the new notice of appeal is simply filed in the proper appeal.  I believe our docketing error should be corrected first.  Thus, I dissent to the sending of the referenced notice.[1]

 

                                                                   TOM GRAY

                                                                   Chief Justice

 

Dissenting Opinion delivered and filed January 24, 2007

Publish

APPENDIX

 

 

 

 

January 24, 2007

 

 

Steven S. Reilley

Thompson & Reilley, PC

600 Travis Street, Suite 7350

Houston, TX 77002

 

RE:              Court of Appeals Number:   10-06-00237-CV

                   Trial Court Case Number:    8080CV

 

STYLE:       Manuel Villegas

                   v.

                   Heidi Henke Morse

 

In a September 13, 2006 order, this Court abated this appeal for entry of a final judgment that addressed all of Appellee’s claims.  It appears to the Court that the trial court has entered an October 3, 2006 Order on Plaintiff’s Motion for Default Judgment and that Appellant has filed a notice of appeal of that Order and a December 18, 2006 order denying a new trial.

 

Therefore, the Court may dismiss this appeal unless, within 14 days from the date of this letter, a response is filed showing grounds for continuing this appeal.

 

Sincerely,

 

Sharri Roessler, Clerk

 

 

___________________________

By:  Nell Hegefeld, Deputy Clerk

 

CC:    Bennie D. Rush