Katherine Henry, Carolyn Stone and Randy Rice v. Estate of Philip Anthony Bonifazi

 

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00163-CV

 

Katherine Henry, Carolyn Stone

and Randy Rice,

                                                                      Appellants

 v.

 

Estate of Philip Anthony Bonifazi,

Deceased,

                                                                      Appellee

 

 


From the County Court at Law No. 1

Brazos County, Texas

Trial Court Nos. 12,009-PC-A

 

And

 

No. 10-06-00164-CV

 

KATHERINE HENRY, CAROLYN STONE

AND RANDY RICE,

                                                                        Appellants

v.

 

ESTATE OF ANGELA BONIFAZI, DECEASED

                                                                        Appellee

 

 


From the County Court at Law No. 1

Brazos County, Texas

Trial Court Nos. 12,009-PC-B

 

ABATEMENT ORDER


 

          Appellants noted in their docketing statements filed on August 14, 2006, that these appeals may be appropriate for mediation, a form of alternative dispute resolution.

      The Legislature has provided for the resolution of disputes through alternative dispute resolution (ADR) procedures.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001-154.073 (Vernon 2005).  The policy behind ADR is stated in the statute: “It is the policy of this state to encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary settlement procedures.”  Id. § 154.002 (Vernon 2005).  Mediation is a form of ADR.  Mediation is a mandatory but non-binding settlement conference, conducted with the assistance of a mediator.  Mediation is private, confidential, and privileged.

      We find that these appeals are appropriate for mediation.  See id. § 154.021(a) (Vernon 2005); 10th Tex. App. (Waco) Loc. R. 9.

      The parties are ordered to confer and attempt to agree upon a mediator.  Within fourteen days after the date of this Order, Appellants are ordered to file a notice with the Clerk of this Court which either identifies the agreed-upon mediator or states that the parties are unable to agree upon a mediator.  If the notice states that the parties are unable to agree upon a mediator, this Court will assign a mediator.

      Mediation must occur within thirty days after the date the above-referenced notice agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty days after the date of the order assigning a mediator.

      Before the first scheduled mediation session, each party must provide the mediator and all other parties with an information sheet setting forth the party’s positions about the issues that need to be resolved.  At or before the first session, all parties must produce all information necessary for the mediator to understand the issues presented.  The mediator may require any party to supplement the information required by this Order.

      Named parties must be present during the entire mediation process, and each corporate party must be represented by a corporate employee, officer, or agent with authority to bind the corporate party to settlement.

      Immediately after mediation, the mediator must advise this Court, in writing, only that the case did or did not settle and the amount of the mediator’s fee paid by each party.  The mediator’s fees will be taxed as costs.  Unless the mediator agrees to mediate without fee, the mediator must negotiate a reasonable fee with the parties, and the parties must each pay one-half of the agreed-upon fee directly to the mediator.

      Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. 

      Any objection to this Order must be filed with this Court and served upon all parties within ten days after the date of this Order, or it is waived.

      We abate these appeals for mediation.

PER CURIAM

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Order issued and filed August 30, 2006

Appeal abated

Do not publish

e="">[1] claim.  Under this issue and throughout his brief, Geiger’s complaint is against the defendants’ characteristic of Geiger’s suit; it is not that the trial court erred in dismissing the lawsuit. Geiger argues that he brought his suit pursuant to the Texas Tort Claims Act.  We cannot say, after reviewing Geiger’s petition, that he brought his suit pursuant to the Texas Tort Claims Act.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 2008); Mission Consolidated Ind. Sch. Dist. v. Garcia, 253 S.W.3d 653, (Tex. 2008) (The Act generally waives governmental immunity to the extent that liability arises from the "use of a motor-driven vehicle or motor-driven equipment" or from a "condition or use of tangible personal or real property.").  Accordingly, we do not fault the defendants for allegedly mis-characterizing Geiger’s claim.  His third issue is overruled.

            Having overruled each issue on appeal, we affirm the trial court’s judgment.

 

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed October 7, 2009

[CV06]



[1] 42 U.S.C.A. § 1983.