Laura B. Barker v. Citibank (South Dakota) N.A. ( 2006 )

                                      COURT OF APPEALS

                                       SECOND DISTRICT OF TEXAS

                                                   FORT WORTH

                                        NO. 2-05-400-CV  

LAURA B. BARKER                                                              APPELLANT

                                                   V.

CITIBANK (SOUTH DAKOTA) N.A.                                            APPELLEE

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         FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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                                MEMORANDUM OPINION^[1]

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On January 6, 2006, Appellant Laura B. Barker filed an AAgreed Motion To Dismiss Appeal,@ stating the parties have settled all matters in controversy in this case and requesting the appeal be dismissed.  See Tex. R. App. P. 42.1(a)(1).  The motion was also signed by counsel for Appellee Citibank (South Dakota) N.A. 

On January 10, 2006, Appellant filed a AMotion to Ensure Secure Means of Timely Performance,@ in which she requests this court to make a ruling: requiring Appellee to Aallow a secure means of funds transfer@ for implementation of the parties= settlement agreement; and enacting certain Asafeguards@ so that if Appellant timely makes the payments required by the parties= settlement agreement, she cannot be penalized.

On January 20, 2006, we notified the parties that we are not authorized to alter the terms of the parties= settlement agreement as requested in Appellant=s AMotion to Ensure Secure Means of Timely Performance.@  We requested each party advise us of its position regarding how Appellant=s motion impacts the AAgreed Motion To Dismiss Appeal.@^[2]

Appellee responded that the settlement agreement signed by the parties^[3] requires Appellant to dismiss the appeal and that Appellant does not dispute this; rather, Appellant requests we modify the terms of the settlement agreement and then dismiss the appeal. Appellee contends we are not authorized to modify the terms of the parties= settlement agreement, and Appellee requests we deny Appellant=s AMotion to Ensure Secure Means of Timely Performance@ and grant the motion to dismiss the appeal.

Appellant=s AMotion to Ensure Secure Means of Timely Performance@ states she is Ain no way seeking to disturb or change the settlement agreement@ with Appellee.  In her response to our inquiry, Appellant  informs us that she is Anot seeking in any way to alter anything about the size, frequency, nor duration of the payment program.@  With regard to whether she wants to dismiss the appeal or keep it active, Appellant states, AIt should be obvious beyond doubt that I do not want to continue with the lawsuit.  I have signed the settlement; I have begun performance, with not one but two payments forwarded by now.@  She concludes, AI do not want to continue fighting this lawsuit,@ and states that if the court chooses to deny her motion to implement safeguards regarding her monthly payments under the settlement agreement, AI would say go ahead and dismiss the thing.@

Because we are not authorized to take the measures requested in Appellant=s AMotion to Ensure Secure Means of Timely Performance,@ we deny the motion.  Because Appellant has confirmed that she wants to dismiss her

appeal, we grant the AAgreed Motion To Dismiss Appeal.@  Accordingly, this appeal is dismissed.  See Tex. R. App. P. 42.1(a)(1), 43.2.

PER CURIAM

PANEL D:  HOLMAN, GARDNER, and WALKER, JJ.

DELIVERED:  February 9, 2006

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^[1]See Tex. R. App. P. 47.4.

^[2]See, e.g., S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (holding a party may revoke its consent to a settlement agreement at any time before the trial court renders judgment on the agreement).

^[3]The parties did not provide us with a copy of the settlement agreement.