the Spike S Ranch, Inc. and Guido Pathak v. Foreign Trade and Management, S.A. ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE SPIKE S RANCH, INC. AND GUIDO PATHAK,                             Appellants, v. FOREIGN TRADE AND MANAGEMENT, S.A.                             Appellee.	' ' ' ' '  '	No. 08-99-00411-CV Appeal from the             County Court at Law No. 3 of El Paso County, Texas (TC# 99-2521)

MEMORANDUM OPINION

The instant appeal is reinstated following an automatic stay and the motion to substitute counsel is granted.  Pending before the Court is a motion for rehearing and joint motion to dismiss appeal.

Shortly after issuance of our opinion which reversed the trial court=s order denying arbitration, appellants filed a bankruptcy petition.  Spike S. Ranch, Inc. v. Foreign Trade and Management, S.A., No. 08-99-00411-CV, 2000 WL 1038165 (Tex. App.--El Paso July 27, 2000, no pet.) (not designated for publication).  As a result of the automatic stay, the Court could not act upon appellee=s motion for rehearing or other pending motions.

Appellants and appellee have resolved all matters between them in the course of the bankruptcy proceedings.  Accordingly, the parties have filed this motion to dismiss appeal pursuant to Tex. R. App. P. 42.1, which states that:

(a)  On Motion or By Agreement.  The appellate court may dispose of an appeal as follows:

(1)  On Motion of Appellant.  In accordance with a motion of appellant, the court may dismiss the appeal or affirm the appealed judgment or order unless disposition would prevent a party from seeking relief to which it would otherwise be entitled.

(2)  By Agreement.  In accordance with an agreement signed by the parties or their attorneys and filed with the clerk, the court may:

(A)  render judgment effectuating the parties= agreements;

(B)  set aside the trial court=s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the agreements; or

(C)  abate the appeal and permit proceedings in the trial court to effectuate the agreement.

The motion for rehearing is denied as moot, and the appeal is dismissed pursuant to the agreement of the parties.  The judgment of July 27, 2000 is withdrawn and the judgment of December 11, 2003 is substituted.  Each party shall bear its own costs in this Court and the court below.

SUSAN LARSEN, Justice

December 11, 2003

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.