IN THE

TENTH COURT OF APPEALS

No. 10-10-00028-CV

Sanger School Foundation, Inc.,

                                                                                    Appellant

 v.

City of Waco, Texas,

                                                                                    Appellee

From the 74th District Court

McLennan County, Texas

Trial Court No. 2008-3927-3

            Pursuant to Rules 42.3 and 44.3 of the Texas Rules of Appellate Procedure, the parties are notified that this case is subject to dismissal because it appears the appeal is of an interlocutory order.  The Court notes that the issues/claims of Sanger School Foundation, Inc. do not appear to have been resolved by the trial court’s order signed on December 17, 2009.  Further, the order appears to be interlocutory in that it contemplates further orders by the trial court, such as the assessment of tear down and removal cost, if incurred, by the City of Waco. 

            Further, the question regarding the authority of counsel to represent Sanger School Foundation, Inc. was raised by the City of Waco shortly before the appeal was filed but was not resolved.  Because the question of counsel’s authority will require an evidentiary hearing, this proceeding must be abated. 

            However, before we abate this appeal for resolution of these issues, we find that this appeal is appropriate for mediation.  See Tex. Civ. Prac. & Rem. Code Ann. § 154.021(a) (Vernon 2005); 10th Tex. App. (Waco) Loc. R. 9.

            The Court assigns the Honorable Phillip Zeigler as the mediator for this appeal.  His address and telephone number are as follows:

620 E. Leon Street

Gatesville, TX 76528

(254) 865-7255

            Mediation must occur within thirty days after the date of this order.

            No less than seven calendar days before the first scheduled mediation session, each party must provide the mediator and all other parties with an information sheet setting forth the party’s positions about the issues that need to be resolved.  At or before the first session, all parties must produce all information necessary for the mediator to understand the issues presented.  The mediator may require any party to supplement the information required by this Order.

            Named parties must be present during the entire mediation process, and each corporate party must be represented by a corporate employee, officer, or agent with authority to bind the corporate party to settlement.

            Immediately after mediation, the mediator must advise this Court, in writing, only that the case did or did not settle and the amount of the mediator’s fee paid by each party.  The mediator’s fees will be taxed as costs.  Unless the mediator agrees to mediate without fee, the mediator must negotiate a reasonable fee with the parties, and the parties must each pay one-half of the agreed-upon fee directly to the mediator.

            Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. 

            Any objection to this Order must be filed with this Court and served upon all parties within ten days after the date of this Order, or it is waived.

            We refer this appeal to mediation.

            The appeal and all appellate deadlines are suspended as of the date of this Order.  The suspension of the appeal is automatically lifted when the mediator’s report to the Court is received.  If the matter is not resolved at mediation, any deadline that began to run and had not expired by the date of this Order will begin anew as of the date the mediator’s report to the Court is received.  Any document filed by a party after the date of this Order and prior to the filing of the mediator’s report will be deemed filed on the same day, but after, the mediator’s report is received.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

            (Justice Davis concurring with a note) *

Appeal abated

Order issued and filed April 14, 2010

            * “(Justice Davis concurs in the abatement and referral to mediation only.)”