Court of Appeals of Texas, 2011

Steve Wayne Allen v. SueJo Brown

Court of Appeals of Texas · Decided November 10, 2011

Opinion

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00274-CV

STEVE WAYNE ALLEN APPELLANT V.

SUEJO BROWN APPELLEE

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY ------------

MEMORANDUM OPINION1 AND JUDGMENT ------------

We have considered appellant’s AMotion For Dismissal And Remand To Trial Court,@ along with the settlement agreement attached thereto, requesting that we abate this appeal and permit proceedings in the trial court to effectuate the settlement agreement and that we set aside the arbitrated judgment without regard to the merits. It is the court=s opinion that the motion should be granted in part and denied in part. 2 Accordingly, without regard to the merits, we set aside the arbitrated judgment and remand this case to the trial court for rendition of judgment in accordance with the parties= settlement agreement. See Tex. R. App. P. 42.1(a)(2)(B), 43.2(d); Innovative Office Sys., Inc. v. Johnson, 911 S.W.2d 387, 388 (Tex. 1995).

Costs of the appeal shall be paid by the party incurring the same, for which let execution issue. See Tex. R. App. P. 43.4.

PER CURIAM PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: November 10, 2011

1 See Tex. R. App. P. 47.4. 2 That is, the parties ask us to abate this case until the trial court’s proceedings to effectuate this settlement agreement are complete and to set aside the arbitrated judgment and remand this case to the trial court for rendition of judgment. See Tex. R. App. P. 42.1(a)(2)(B), (C). Rule 42.1(a)(2), however, permits us to set aside the trial court=s judgment and remand the case to the trial court for rendition of judgment in accordance with the agreement or to abate the appeal and permit proceedings in the trial court to effectuate the agreement; we cannot do both. See Tex. R. App. P. 42.1(a)(2)(B), (C); see also Cunningham v. Cunningham, No. 02-08-00362-CV, 2008 WL 5479677, at *1 n.2 (Tex. App.CFort Worth Oct. 30, 2008, no pet.) (mem. op.).

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