Melchor Jesus B. Acosta, M.D. v. Gina Kay, Individually and as Representative of the Estate of Tamsey Lynora Moore ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00396-CV
MELCHOR JESUS B. ACOSTA, APPELLANT
M.D.
V.
GINA KAY, INDIVIDUALLY AND AS APPELLEES
REPRESENTATIVE OF THE
ESTATE OF TAMSEY LYNORA
MOORE, DECEASED
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1 AND JUDGMENT
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We have considered the parties= AJoint Motion To Dismiss,@ requesting
that we render judgment to effectuate their settlement agreement, abate this
case until the trial court’s proceedings to effectuate the settlement agreement are
complete, and remand this case to the trial court for rendition of judgment in
1
See Tex. R. App. P. 47.4.
accordance with the parties’ agreement. It is the court=s opinion that the motion
should be granted in part and denied in part.2 Accordingly, without regard to the
merits, we set aside the trial court=s 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).
Appellant’s request that this appeal be joined with appellate cause number
02-11-00365-CV, styled TRISUN Healthcare, LLC d/b/a The Plaza At Mansfield
v. Gina Kay, Individually and as Representative of the Estate of Tamsey Lynora
Moore, Deceased, is dismissed as moot. All other requested relief is denied.
Costs of the appeal shall be paid by appellant, for which let execution
issue. See Tex. R. App. P. 42.1(d).
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: November 3, 2011
2
That is, the parties ask us to render judgment effectuating the parties=
agreement and to abate this case until the trial court’s proceedings to effectuate
this settlement agreement are complete and to remand this case to the trial court
for rendition of judgment. See Tex. R. App. P. 42.1(a)(2)(A), (B), (C). Rule
42.1(a)(2), however, permits us to render judgment effectuating the parties=
agreement or 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 all three or portions of all three. See Tex. R. App. P. 42.1(a)(2)(A),
(B); 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.).
2