paul-denucci-individually-and-in-his-derivative-capacity-on-behalf-of ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00680-CV
Appellant, Paul DeNucci , Individually and in his Derivative Capacity on behalf of
eStrategy Solutions, Inc.//Cross-Appellants, John Matthews, Steve Matt and
eStrategy Solutions, Inc.
v.
Appellees, John Matthews, Steve Matt and eStrategy Solutions, Inc.//Cross-Appellee,
Paul DeNucci , Individually and in his Derivative Capacity on behalf of
eStrategy Solutions, Inc.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-10-002065, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
MEMORANDUM OPINION
On January 25, 2013, this Court granted appellees John Matthews, Steve Matt and
eStrategy Solutions, Inc.’s motion to postpone oral argument, based on their assertion that the
parties had, at least potentially, reached a mediated settlement of the underlying suit in this appeal.1
On March 14 and April 15, 2013, the parties filed their joint status reports, as requested, informing
the Court that (1) a separate suit seeking enforcement of a settlement agreement is currently pending
in the trial court; (2) court-ordered mediation of the enforcement suit was unsuccessful; (3) the trial
court denied appellees’ summary judgment to enforce the agreement; and (4) the enforcement
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Because the appellees have filed a cross-appeal in this cause, the appellant and appellees
are also cross-appellee and cross-appellants, respectively. However, for ease of reference we will
refer to the parties simply as “appellant” and “appellees.”
suit is expected to proceed to trial. The appellees contend that one of the issues in the enforcement
suit is whether the claims that are currently before this Court have been released. Consequently,
the appellees have requested that we continue to postpone this appeal pending resolution of
the enforcement suit; we treat this request as a request to abate this appeal. Conversely, appellant
Paul DeNucci contends that this appeal should proceed because “the outcome of the appeal should
not turn on a later-filed trial court proceeding.”
Under these circumstances, we conclude that the parties and this Court should not
be required to expend resources on an appeal that may be rendered moot. See Mantas v. Fifth Court
of Appeals, 925 S.W.2d 656, 659 (Tex. 1996) (orig. proceeding) (holding that court of appeals
abused its discretion in refusing to abate appeal pending resolution of suit to enforce settlement
agreement). Accordingly, the appellees’ request is granted, and the appeal is abated pending further
order of this Court. Id. On or before August 30, 2013, the parties shall submit a joint status report
concerning the status of the pending suit to enforce settlement agreement. In any event, the parties
shall promptly notify this Court when the enforcement suit is finally resolved (including all appeals).
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Pemberton and Field
Abated
Filed: May 23, 2013
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