Martin B. Smith, Toni E. Smith, and Martha A. Smith v. Law Office of Dale A. Burrows, P.C. and JP Morgan Chase Bank, N.A. ( 2010 )

02-10-113-CV

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00113-CV

MARTIN B. SMITH, TONI E. SMITH, AND MARTHA A. SMITH

APPELLANTS

V.

LAW OFFICE OF DALE A. BURROWS, P.C., AND JP MORGAN CHASE BANK, N.A.

APPELLEES

------------

FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

------------

MEMORANDUM OPINION[1]

------------

          On January 29, 2010, the trial court signed a post-judgment garnishment to collect on a summary judgment entered in favor of Appellee Law Office of Dale A. Burrows.  Appellants Martin B. Smith, Toni E. Smith, and Martha Smith thereafter timely filed a motion for new trial and a notice of appeal in both the underlying summary judgment case[2] and this garnishment case.  Appellants filed appellate briefs in both cases.  In the summary judgment case, which is being disposed of today in a separate opinion, we reversed the trial court’s summary judgment and remanded the case to the trial court for further proceedings.

Here, after Appellants filed their appellate brief, arguing in four issues that the trial court erred by granting the garnishment, Appellee filed a two-page response stating that it had “agreed to a reversal of the trial court’s summary judgment in favor of Appellee and a remand of the case to the trial court for further proceedings” and that because “[a] reversal of the summary judgment would necessitate a reversal of the garnishment as well,”  “Appellee, therefore, agrees to a reversal and remand of this case.”  Based on our disposition in the summary judgment case and Appellee’s agreement to a reversal of the garnishment judgment, we also reverse the trial court’s judgment of garnishment and remand it to the trial court for further proceedings. See Tex. R. App. P. 43.2(d); see also Graham Gen. Hosp. v. Phillips, No. 02-03-00231-CV, 2003 WL 22251455, at *1 (Tex. App.––Fort Worth Oct. 2, 2003, no pet.) (mem. op.) (reversing and remanding upon parties’ agreed motion to reverse and remand).

SUE WALKER

                                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DELIVERED:  October 14, 2010

---

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

          [2]The appeal from the summary judgment was docketed as case number 02-10-00112-CV.