











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00050-CV
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BODY DYNAMICS, INC., D/B/A
BDI MARKETING, INC., Appellant
 
V.
 
NITTANY PHARMACEUTICALS, INC., Appellee


                                              

On Appeal from the 5th Judicial District Court
Cass County, Texas
Trial Court No. 04-C-159-A


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter


MEMORANDUM OPINION

            Body Dynamics, Inc., d/b/a BDI Marketing, Inc., the sole appellant in this case, has filed a
motion seeking to dismiss its appeal, representing to this Court that the parties have reached a full
and final settlement.  In such a case, no real controversy exists, and in the absence of a controversy,
the appeal is moot.
            We grant the motion and dismiss this appeal.
 

                                                                        Jack Carter
                                                                        Justice

Date Submitted:          September 18, 2006
Date Decided:             September 19, 2006




ability and magnitude of the potential harm to
others; and (2) the actor must have actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or welfare of
others.  Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).  Neither of the fact
patterns alleged by Horton constituted gross negligence.  Again, if Froelich ordered the
actions, Horton may have had a claim for assault or conversion, but not gross negligence. 
And, if Froelich was merely aware of the actions between the inmates, there was certainly
no claim for gross negligence.  Under either scenario alleged in Horton's petition, there was
no basis in law for his claims of negligence or gross negligence.  Therefore, the trial court
did not abuse its discretion when it dismissed Horton's petition.
	We affirm the judgment.


							Donald R. Ross
							Justice

Date Submitted:	August 26, 2002
Date Decided:	August 27, 2002

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