Lee, Dionne v. Rosen Newey and Von Blon PC Rosen and Newey PC and Marian S. Rosen--Appeal from 127th District Court of Harris County

Dismissed as Moot and Opinion filed August 29, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-99-00120-CV

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DIONNE LEE, Appellant

V.

ROSEN, NEWEY & VON BLON, P.C., ROSEN & NEWEY, P.C., AND MARIAN S. ROSEN, Appellees

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 97-33363

M E M O R A N D U M O P I N I O N

This is an appeal from a judgment signed October 16, 1999. On April 15, 1999, this court determined the case was appropriate for mediation and issued an order requiring the parties to mediate. At the conclusion of the mediation proceedings on June 1, 1999, the parties entered into a ABinding Settlement Agreement.@ On June 3, 1999, the mediator filed a report with this court stating the parties had settled. Following the settlement, appellant attempted to withdraw from the agreement based on alleged breaches by appellees. Section 6 of the settlement agreement states that if any dispute arises with regard to the drafting, interpretation, or performance of the agreement, the parties will submit the dispute to the mediator for binding arbitration. The dispute over the settlement agreement was submitted to the mediator and, on July 13, 1999, he overruled all of appellant=s objections to the enforceability of the settlement agreement.

On June 21, 1999, appellant asked the court to lift its mediation stay. On July 21, 1999, because neither party had filed a dispositive motion, the court lifted the mediation stay and put the case back on the court=s docket.

On July 29, 1999, appellees filed a motion to dismiss the appeal. Appellees asked the court to dismiss the appeal with prejudice pursuant to the terms of the ABinding Settlement Agreement.@ Because appellant apparently revoked her consent to the settlement before any dispositive motion was filed by the parties or acted upon by this Court, we determined that appellees were required to seek enforcement of the agreement in a separate action. See Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658-59(Tex. 1996). Under Mantas, we could not dismiss the appeal based on the settlement agreement. See id. According to Mantas, we were required to abate the appeal pending resolution of any enforcement action. See id. at 659. Accordingly, we entered an order on August 26, 1999, which stated, in pertinent part:

(1) We DENY appellees= motion to dismiss.

(2) We ORDER the appeal in cause number 14-98-00120-CV, Dionne Lee v. Rosen, Newey & Von Blon, P.C., Rosen & Newey, P.C.,and Marian S. Rosen, abated pending final resolution of any enforcement action relating to the ABinding Settlement Agreement.@ The appeal will be treated as a closed case and is removed from the court=s active docket. Mandate will not issue until the appeal is resolved by this court or until the court dismisses the case upon proper motion.

(3) We ORDER the appellate timetables suspended during the abatement.

(4) We ORDER the parties to promptly notify this court when the dispute pertaining to the enforcement of the ABinding Settlement Agreement@ is finally resolved.

Subsequently, appellees filed a separate action to confirm the arbitration award and enforce the Binding Settlement Agreement. Appellees ultimately filed a motion for summary judgment and motion to confirm. The trial court confirmed the arbitration award on March 6, 2000, and on March 7, 2002, entered summary judgment in favor of appellees. Appellant filed a motion for new trial, which was denied, and then filed an appeal. That appeal, filed under cause number14-00-00759-CV, was affirmed by this Court in an opinion issued August 22, 2002. In that opinion, we affirmed the trial court=s judgment. Accordingly, because we have affirmed the trial court=s judgment, which confirmed the arbitration award and entered judgment in favor of appellees, we dismiss the appeal in cause number 14-99-00120-CV as moot.

The appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed August 29, 2002.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).