
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

)
KMART CORPORATION, a Michigan )
Corporation doing business in El Paso County,)
Texas,)
		   No.  08-99-00447-CV

)
			Appellant,)
			Appeal from

)
v.)
		    205th District Court

)
ANTONIO JORDAN, and wife)
		of El Paso County, Texas

BEATRICE JORDAN,)
 )
		          (TC# 97-137)

			Appellees.)


OPINION ON MOTION


	Pending before the Court is the motion of Appellant, KMart Corporation, to reverse the
judgment because the parties have settled all matters in controversy between them.  The Appellees,
Antonio and Beatrice Jordan obtained a money judgment against KMart in a wrongful death suit. 
KMart appealed the judgment and later filed a bankruptcy petition after the appeal had been
submitted.  Consequently, this Court entered an order acknowledging the automatic stay required
by the pending bankruptcy proceeding.  The bankruptcy court recently approved a settlement of the
Jordans' claim against KMart.  In order to resolve KMart's motion, we reinstate the appeal.
	Rule 42.1 of the Texas Rules of Appellate Procedure states that:
	(a)  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 wit [sic] the agreements; or

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

	By its motion, KMart requests that we set aside the trial court's judgment without regard to
the merits and remand the case to the trial court for entry of a take nothing judgment in accordance
with the settlement agreement.  See Tex.R.App.P. 42.1(a)(2)(B).  According to the motion, the
Jordans have been paid the funds specified in the settlement agreement and they have waived all
claims they have against KMart.  The motion is granted.  Accordingly, the trial court's judgment is
set aside and the cause is remanded to the trial court for entry of a take nothing judgment.  Pursuant
to the parties' agreement, we assess costs against the party incurring same.  See Tex.R.App.P.
42.1(d)(absent agreement of the parties, the court will tax costs against the appellant).


August 7, 2003					 
							ANN CRAWFORD McCLURE, Justice

Before Panel No. 4
Barajas, C.J., Larsen, and McClure, JJ.
