TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00509-CV

The Heep Homestead and Hatsy Heep Shaffer, Appellants

v.

Jennifer L. Brannon, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. GN103418, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

MEMORANDUM OPINION

The Trustee for the Bankruptcy Estate of David E. Shaffer and Harriet “Hatsy” Heep Shaffer1 has notified the court that the Estate and appellee Jennifer L. Brannon have settled the cause

This Court suspended activity in this appeal in accordance with the automatic stay. See 11 U.S.C.A. § 362 (West Supp. 2004); see also Tex. R. App. P. 8. We reinstate the appeal for purposes of dismissal. The bankruptcy trustee is the representative of the estate, with exclusive standing to assert a claim. 11 U.S.C.A. § 323(a) (West Supp. 2004); Carter v. Carter, 21 S.W.3d 441, 443 (Tex. App.—San Antonio 2000, no pet.). When an action is already pending, a trustee may (1) assume prosecution of the action; (2) consent to the debtor’s continued prosecution of the action for the trustee’s benefit, or (3) decline to prosecute the action if it appears to be fruitless. Id.; Fed. R. Bankr.

6009. Here the trustee appears to have assumed prosecution of the action and settled it. and the parties move to dismiss the appeal. We grant the motion and dismiss the appeal. See Tex. R. App. P. 42.1.

W. Kenneth Law, Chief Justice Before Chief Justice Law, Justices Kidd and B. A. Smith Dismissed Filed: August 12, 2004