Court of Appeals of Texas, 2011

Melchor Jesus B. Acosta, M.D. v. Gina Kay, Individually and as Representative of the Estate of Tamsey Lynora Moore

Court of Appeals of Texas · Decided November 3, 2011

Opinion

COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00396-CV

MELCHOR JESUS B. ACOSTA, APPELLANT M.D.

GINA KAY, INDIVIDUALLY AND AS APPELLEES REPRESENTATIVE OF THE ESTATE OF TAMSEY LYNORA MOORE, DECEASED

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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1 AND JUDGMENT

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We have considered the parties= AJoint Motion To Dismiss,@ requesting that we render judgment to effectuate their settlement agreement, abate this case until the trial court’s proceedings to effectuate the settlement agreement are complete, and remand this case to the trial court for rendition of judgment in accordance with the parties’ agreement. 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 trial court=s 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).

Appellant’s request that this appeal be joined with appellate cause number 02-11-00365-CV, styled TRISUN Healthcare, LLC d/b/a The Plaza At Mansfield v. Gina Kay, Individually and as Representative of the Estate of Tamsey Lynora Moore, Deceased, is dismissed as moot. All other requested relief is denied.

Costs of the appeal shall be paid by appellant, for which let execution issue. See Tex. R. App. P. 42.1(d).

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

DELIVERED: November 3, 2011

1 See Tex. R. App. P. 47.4. 2 That is, the parties ask us to render judgment effectuating the parties= agreement and to abate this case until the trial court’s proceedings to effectuate this settlement agreement are complete and to remand this case to the trial court for rendition of judgment. See Tex. R. App. P. 42.1(a)(2)(A), (B), (C). Rule 42.1(a)(2), however, permits us to render judgment effectuating the parties= agreement or 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 all three or portions of all three. See Tex. R. App. P. 42.1(a)(2)(A), (B); 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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