Opinion
Appellate case number: 01-18-00084-CV
04-24-2018
Jennifer Webb v. Benjamin Shapley
ORDER Trial court case number: 13-FD-1037 Trial court: County Court at Law No. 1 of Galveston County
Appellant, Jennifer Webb, has filed a notice of appeal of the trial court's final judgment in a suit for modification of conservatorship and child support. Webb also has filed an "Opposed Verified Motion to Abate and Remand to Trial Court for Further Action," representing that, after filing her notice of appeal, she and appellee, Benjamin Shapley, "entered into a written agreement on the issues of conservatorship and support" and, if valid and enforceable, this agreement would "resolve this appeal." Webb's motion reflects that the parties negotiated the agreement "without the aid or assistance of their respective counsel" and Shapley's counsel has stated that she "disapproved of the agreement," and "would not aid in the modification." Webb asks this Court to abate the appeal and remand the case "to determine the enforceability of the parties' agreement." Shapley has not responded to Webb's motion.
We grant in part the motion and abate the appeal pending resolution of any proceedings to enforce the agreement. See Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658-59 (Tex. 1996) (orig. proceeding) (explaining if settlement dispute arises while underlying action is on appeal party seeking enforcement must file separate breach of contract action and appeal should be abated); see Tony's Barbeque and Steakhouse, Inc. v. Three Points Invs., Ltd., 527 S.W.3d 686, 689 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ("If the settlement dispute does not arise until the cause is on appeal, then claims for the breach or enforcement of the settlement agreement must be filed as a separate cause and the appeal abated pending resolution of the settlement-agreement dispute."); cf. TEX. R. APP. P. 42.1(a)(2)(C) (providing, in accordance with parties' agreement, appellate court may "abate the appeal and permit proceedings in the trial court to effectuate the agreement").
Accordingly, no later than 60 days from the date of this order, the parties shall file a motion to reinstate and dismiss or otherwise dispose of the appeal, a motion to reinstate and proceed with the appeal, or a report advising the Court of the status of any trial court or settlement proceedings. If the parties do not respond as directed, the case may be reinstated on the Court's active docket and the appeal will proceed under the applicable Texas Rules of Appellate Procedure.
The appeal is abated, treated as a closed case, and removed from this Court's active docket.
It is so ORDERED. Judge's signature: /s/ Terry Jennings
[v] Acting individually [ ] Acting for the Court Date: April 24, 2018