Lutz, Margaret Ann v. Continental Airlines, and Holliman, Russell Scott--Appeal from 113th District Court of Harris County

Dismissed and Opinion filed June 20, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-00771-CV

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MARGARET ANN LUTZ, Appellant

V.

CONTINENTAL AIRLINES, INC. AND RUSSELL SCOTT HOLLIMAN, Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 99-31945

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 June 6, 2002. On July 20, 2000, this Court determined the case was appropriate for mediation and issued an order requiring the parties to mediate. On August 18, 2000, the mediator filed a report stating the parties had settled. On September 15, 2000, appellant filed a motion entitled AUnopposed Motion for Leave of Court to Continue Appeal.@ In that motion, appellant admitted the parties had executed a settlement agreement; however, appellant alleged the parties had been unable to Aconsummate@ the agreement. Appellant asked the Court to continue the appeal. In her certificate of conference, appellant stated Aappellees have no opposition to this motion.@

Despite the allegation that the motion was unopposed, this Court held the motion for more than ten days awaiting a response from appellees. See Tex. R. App. P. 10.3(a). Appellees did not file a response. Given the statements in the motion and the lack of response by appellees, on October 5, 2000, the Court granted the motion, lifted the mediation stay, placed the case back on the active docket, and notified the parties of the ruling.

On October 18, 2000, appellees filed a motion to dismiss the appeal or, in the alternative, a request for the Court to reconsider its decision to continue the appeal. In that motion, appellees stated they did not respond to appellant=s motion because they were never served with copy of the motion. Moreover, appellees emphatically denied appellant=s statement that they were unopposed to appellant=s motion. Substantively, appellees argued we should dismiss the appeal because the parties had entered into and signed a binding settlement agreement.

In response to appellees= motion to dismiss and reconsider, appellant contended the appeal should not be dismissed, rather, it should be continued. Appellant admitted she entered into and signed a settlement agreement; however, she argued the agreement was not binding because: (1) there was a mutual or unilateral mistake of fact with regard to the terms of the mediated settlement agreement; and (2) appellees anticipatorily breached the terms of the mediated settlement agreement. On this basis, appellant asked that we deny the motion filed by appellees.

Because appellant disputed the validity of the settlement agreement, we held that appellees had to seek enforcement of the agreement in a separate action, subject to the normal rules of pleading and proof. See Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 657-59 (Tex. 1996). We noted that we could not dismiss the appeal based on the settlement agreement. See id. We held that we were required to abate the appeal pending resolution of any enforcement action. See id. at 659.

Accordingly, we (1) denied appellee=s motion to dismiss; (2) granted appellee=s motion to reconsider our decision to grant leave to continue the appeal; and (3) ordered the appeal abated pending final resolution of any enforcement action relating the settlement agreement signed by the parties. We ordered the appeal treated as a closed case and removed from the court=s active docket. We noted that mandate would not issue until the appeal was resolved by this Court or until we dismissed the case upon proper motion. We further ordered the appellate timetables suspended during the abatement, and the parties to promptly notify this Court when the dispute pertaining to the enforcement of the signed settlement agreement was finally resolved.

On June 17, 2002, appellant filed a motion to dismiss the appeal because the case has been settled. See Tex. R. App. P. 42.1. The motion is granted.

Accordingly, we order the abatement lifted and the appeal dismissed.

PER CURIAM

Judgment rendered and Opinion filed June 20, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

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