E. Javier Loya, Joseph Kelly, Jr. and Emelda Beasley v. John F. Klosek, derivatively on behalf of nominal defendant OTC Global Holding, LP, a Delaware limited partnership Appeal from 270th District Court of Harris County (memorandum opinion per curiam)
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Opinion issued August 4, 2020 In The Court of Appeals For The First District of Texas ———————————— NO. 01-20-00366-CV ——————————— E. JAVIER LOYA, JOSEPH KELLY, JR., AND EMELDA BEASLEY, Appellants V. JOHN F. KLOSEK, DERIVATIVELY ON BEHALF OF THE NOMINAL DEFENDANT OTC GLOBAL HOLDINGS, LP, Appellee On Appeal from the 270th District Court Harris County, Texas Trial Court Case No. 2019-88391 MEMORANDUM OPINION Appellants, E. Javier Loya, Joseph Kelly, Jr., and Emelda Beasley (collectively, “appellants”), have filed an unopposed “Motion to Effectuate Agreement.” In their appeal, appellants challenge the trial court’s Ap ril 13, 2020 order denying their motion to compel arbitration. On May 26, 2020, this Court issued an order staying the trial court proceedings. In their motion, appellants state that the trial court’s Ap ril 13, 2020 order denying their motion to compel arbitration has “effectively been nullified by the agreement” of appellee, John F. Klosek, acting derivatively on behalf of the nominal defendant OTC Global Holdings LP, to arbitrate the claims at issue. Appellants ask this Court to (1) render judgment that effectuates appellee’s agreement to arbitrate; (2) set aside the trial court’s orders without regard to the merits and remand to the trial court to effectuate appellee’s agreement; or (3) abate the appeals and lift the stay for the limited purpose of permitting the trial court to effectuate appellee’s agreement. See TEX. R. APP. P. 42.1(a)(2)(B) (allowing voluntary dismissal pursuant to agreement of parties and allowing appellate court to remand to trial court for rendition of judgment effectuating agreement of parties). The certificate of conference included with appellants’ motion indicates that appellee is not opposed to the relief sought in the motion. The motion has been on file more than ten days, no response to the motion has been filed, and no op inion has issued. Accordingly, we lift the stay and grant appellants’ motion. We set aside the trial court’s order without regard to the merits, remand this cause to the trial court 2 for effectuation of the parties’ agreement to arbitrate, and dismiss this appeal. See TEX. R. APP. P. 42.1(a)(2)(B), 43.2(e). We sua sponte direct the Clerk of this Court to issue the mandate within ten days of this opinion. See TEX. R. A PP . P. 18.1(c). We dismiss any other pending motions as moot. PER CURIAM Panel consists of Chief Justice Radack and Justices Lloyd and Countiss. 3
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