Glen C. Kunz and Patricia E. Kunz v. Thomas B. Van Buskirk and Phylis M. Van Buskirk--Appeal from 57th Judicial District Court of Bexar County

No. 04-00-00704-CV
Glen C. KUNZ and Patricia A. Kunz,
Appellants
v.
Thomas B. VAN BUSKIRK and Phylis M. Van Buskirk,
Appellees
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CI-17657
Honorable Solomon Casseb, Jr., Judge Presiding

OPINION ON MOTION FOR REHEARING

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 31, 2001

DISMISSED

Our opinion and judgment dated June 29, 2001 are withdrawn. The joint motion for rehearing is granted to clarify the court's judgment.

This appeal is reinstated after its abatement to the trial court for the entry of a new judgment eliminating the award of attorneys' fees in accordance with the parties' agreement. Because the parties agree that the remaining issues in this appeal are moot, we dismiss the appeal.

The underlying lawsuit raised issues regarding the enforceability of certain restrictive covenants and whether a fence constituted a nuisance. The appellees moved for summary judgment, asserting that the restrictive covenants were enforceable and that their fence was in compliance with the restrictive covenants. The trial court granted the appellees' motion and awarded them attorneys' fees and court costs.

On appeal, the appellants challenged the trial court's judgment regarding the enforceability of the restrictive covenants and the nuisance claim. The appellants also challenged the award of attorneys' fees. During the pendency of the appeal both parties agreed that the claim regarding the restrictive covenants and nuisance claim were moot because the appellees no longer owned the property in question. As a result, the attorneys' fees award was the only issue remaining before this court; however, the resolution of the attorneys' fees issue would necessarily require a determination on the merits of the two property claims. During oral argument the appellees agreed to abandon their attorneys' fees claim. The parties agreed to abate the judgment to the trial court for an amended judgment to eliminate the award of attorneys' fees.

The trial court issued an amended order granting the appellees' Motion for Summary Judgment in regard to the restrictive covenant and nuisance issues. Based on the appellees' abandonment of their attorneys' fees claim, the trial court's previous award of attorneys' fees was eliminated, with both sides ordered to bear their own costs.

Because the only issue left before this court on appeal relates to the property disputes that the

parties agree are moot, the appeal is dismissed.

Phil Hardberger, Chief Justice

DO NOT PUBLISH