Steve Wayne Allen v. SueJo Brown

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

1 See Tex. R. App. P. 47.4. 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

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.).