NO. 12-17-00402-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF K.A.M.,

A CHILD

§

§

§

APPEAL FROM THE 402ND 

JUDICIAL DISTRICT COURT

WOOD COUNTY, TEXAS

MEMORANDUM OPINION

A.S. appeals from the trial court’s final order in a suit affecting the parent-child 

relationship. On appeal, she presents one issue. We reverse and remand with instructions.

BACKGROUND

A.S. and R.M. are the parents of K.A.M. On May 2, 2017, R.M. filed an original petition 

in suit affecting the parent-child relationship. In response, A.S. filed an original answer and 

counter-petition. Both parties sought to be appointed sole managing conservator of the child and 

requested issuance of temporary orders. After a contested temporary order hearing held on May 

11, 2017, the trial court appointed both parents as temporary joint managing conservators of 

K.A.M., granted R.M. the exclusive right to designate the primary residence of the child, and 

granted A.S. supervised possession of the child. Pursuant to the trial court’s order, the parties 

attended mediation, which took place on August 28, 2017, resulting in an agreement being 

reached on all disputed issues. A mediation settlement agreement (“MSA”) was signed by R.M., 

A.S., their counsels, and the amicus attorney appointed to represent K.A.M. and was filed with 

the trial court on August 29, 2017.

Among other agreements, the parties agreed that the terms of the MSA would be 

incorporated in a decree/order and that R.M.’s counsel would prepare the documents. The MSA 

included a provision that stated:
2

6. Disputes Regarding This Agreement

If any disputes arise with regard to the interpretation or performance of this agreement or 

any of its provisions, including the necessity and form of closing documents, the parties 

agree to try to resolve the dispute by phone conference with the mediator who facilitated 

this settlement. Any disputes regarding drafting shall be resolved whenever possible by 

reference to the Texas Family Law Practice Manual (3d ed.). Any disputes which remain 

unresolved shall be submitted to the mediator who facilitated this settlement who shall be 

designated as an arbitrator and shall decide such disputes, with such decision(s) being 

binding on the parties.

The MSA contained the parties’ agreements as to conservatorship, possession, medical care, 

child support, and other matters involving the child. The MSA stated in underlined boldfaced 

type capital letters that “THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.” On 

August 31, 2017, a hearing was held for the court to approve the MSA. At the hearing, the trial 

court verbally approved the parties’ agreements set forth in the MSA and directed R.M.’s 

counsel to prepare a final order to incorporate the agreements reached and set forth in the MSA.1

Soon thereafter, both parties sought to change the agreements reached at mediation. On 

September 8, 2017, eight days after the trial court approved the parties’ MSA, R.M. filed a 

Petition to Modify the Parent-Child Relationship. In his petition, R.M. sought to modify a prior 

order identified as “Order in Suit Affecting the Parent-Child Relationship” rendered on August 

31, 2017.2 R.M. alleged that circumstances had materially and substantially changed since the 

parties entered into the MSA on August 28, 2017. He sought appointment as K.A.M.’s sole 

managing conservator and denial of A.S.’s access to K.A.M. In his supporting affidavit, R.M. 

stated that a sample of K.A.M.’s hair taken prior to the mediation but not analyzed until 

afterwards, revealed K.A.M. had been exposed to marijuana. R.M. claimed that the exposure 

occurred during A.S.’s possession of K.A.M. The trial court signed a temporary restraining 

order on September 8, 2017 prohibiting A.S. from having any possession of or access to K.A.M. 

On September 12, the trial court extended the temporary restraining order.

 

1 At this “prove up” hearing, A.S.’s counsel presented a motion to withdraw from further representation of 

A.S., which A.S. agreed to. The trial court verbally granted the motion to withdraw with instructions to A.S.’s 

counsel to submit an order and instructed A.S. that she would need to retain new counsel to review the final order 

that R.M.’s counsel would prepare. 

2 The record before us does not contain any order entered on August 31, 2017. The Final Order, the subject 

of this appeal, was not entered until September 28, 2017.
3

On September 20, 2017, through new counsel, A.S. filed an answer and counter-petition

in suit affecting the parent-child relationship.

3 On September 27, she supplemented her counterpetition and filed an affidavit, in which she alleged that R.M. “most likely” drugged K.A.M. with 

marijuana, that the Texas Department of Family and Protective Services tested K.A.M. and her 

entire household, and that all the members of her household tested negative. She also alleged 

that R.M. told her that he “has had sex with little girls.”4

On September 28, 2017, the trial court held a hearing at which the court initially sought 

to enter the final order presented by R.M.’s counsel as a ministerial act based on representations 

that the proposed order was circulated among counsel, and counsel filed no objections. A.S.’s

new counsel, who was appearing before the court for the first time, objected to the entry of the 

proposed final order on grounds that she was not provided a copy of the proposed order to 

review and object to. A.S.’s counsel requested that entry of a final order be delayed to afford her 

time to thoroughly review and, if necessary, file formal objections to the proposed final order. 

R.M.’s counsel objected to any delays and requested the court sign the proposed final order. He 

argued that since the court had not yet entered a formal order allowing A.S.’s original counsel to 

withdraw, A.S.’s original counsel was still A.S.’s counsel of record. According to R.M.’s 

counsel, A.S.’s original counsel reviewed the proposed order and submitted some proposed 

changes to the initial draft, that R.M.’s counsel made some changes, and that no objection to 

entry of the proposed final order was made by either A.S.’s original counsel or K.A.M.’s amicus 

counsel.

5

The trial court allotted thirty minutes for A.S.’s new counsel to review the proposed final 

order. When court reconvened, A.S.’s counsel stated that, although she received a limited time 

 

3 Contrary to the allegations in R.M.’s petition to modify, A.S.’s counter-petition was not labeled as a 

petition to modify and made no reference to the MSA or any prior order. A.S.’s counter-petition sought for A.S. to 

be named sole managing conservator, that R.M. either be denied access to the child or only have supervised access, 

and that R.M. pay child support. In her answer to R.M.’s petition, A.S. denied entry of an August 31, 2017 order, 

which R.M. sought to modify.

4 The clerk’s record does not include the pleadings filed on September 8, the resulting temporary restraining 

order, the September 12 restraining order, A.S.’s answer and counter-petition, or A.S.’s September 27 supplement to 

her counter-petition. However, the pleadings were filed in a mandamus proceeding filed on January 23, 2018, cause 

number 12-18-00012-CV. We take judicial notice of our record in that proceeding. See Humphries v. Humphries, 

349 S.W.3d 817, 820 n.1 (Tex. App.—Tyler 2011, pet. denied).

5 The record before us does not indicate that the trial court entered an order allowing A.S.’s original counsel

to withdraw. The reporter’s record reflects only that A.S.’s new counsel appeared and there is nothing to indicate 

that A.S.’s original counsel was present at the hearing on September 28, 2017.
4

to review the proposed order, she had some “requested changes” which she then proceeded to 

present to the court. The trial court asked if A.S.’s counsel was not “splitting hairs,” stating that 

it did not have the ability “to go around a [MSA].” After further discussions, the trial court 

announced its intent to sign the order as presented (hereinafter the “Final Order”) and advised 

that A.S. could file a motion for new trial or motion to reconsider. The court announced that the 

hearing on entry of the final order was “over” and signed the order presented to him by R.M.’s 

counsel.

6

After the court signed the Final Order, A.S.’s counsel advised the court that the matter of 

the entry of temporary orders based on the post mediation filings was still before the court. In 

response, the trial court addressed A.S.’s allegations against R.M., noting that the allegations 

“don’t get any worse[]” and had not previously been raised. The trial court suggested that A.S. 

reconsider her affidavit or have “really, really good proof that the allegations you’re making are 

absolutely 100 percent true.” After further discussions, the trial judge advised that he intended to 

sign “this order” and directed that A.S. only have supervised access to K.A.M.7

On October 10, 2017, A.S. filed an objection to entry of the Final Order and motion for 

reconsideration, and a motion for new trial. In her objection, A.S.’s counsel pointed out nine 

“discrepancies” between the Final Order and the MSA that, she said, necessitated the trial court 

to set aside the judgment. The objections included complaints that the Final Order:

(1) granted R.M. the exclusive right to “consent” to medical, dental, surgical care, and psychiatric 

and psychological care of K.A.M. while the MSA granted R.M. the exclusive right to 

“designate” the medical care, including psychological care, of the child;

(2) granted R.M. the exclusive right to receive and give receipt for periodic payments of child 

support when the MSA stated that neither party was to pay child support;

(3) failed to provide for week-on/week-off possession of K.A.M. during the summer after the 

child began school, but instead, included language for expanded summer possession of the 

child by A.S.;

(4) provided for A.S. to exchange possession of K.A.M. at R.M.’s mother’s house even though 

there was no such agreement in the MSA; and

(5) did not provide an exception to the “morality clause” for persons to whom the party in 

 

6 Neither A.S.’s original counsel nor her substituted counsel signed off on the proposed final order.

 

7 The record before us does not indicate that any order other than the Final Order was signed and entered on 

September 28, 2017.
5

possession of the child are related by blood or marriage with the exception of A.S.’s husband.

In his response, R.M. conceded certain points raised by A.S., but stated that most of the issues 

with the Final Order should be decided by the mediator as required by the MSA.

On October 12, 2017, the court signed an order entitled “Temporary Orders” which 

directed that all A.S.’s access to the child “shall” take place in a therapeutic setting at the offices 

of Pennye West, LPC.

8

On October 26, at the hearing on A.S.’s motion for new trial and objection to entry of the 

Final Order, the trial court asked A.S.’s counsel why her objections to discrepancies between the 

MSA and the Final Order were not being presented to the mediator under the MSA’s arbitration 

provision. Without responding to the court’s inquiry, A.S.’s counsel asked whether the court 

was denying her motions. In response, the trial court stated, “So if you want to say I denied it, 

I’ve denied the whole thing. It needs to go back to Jim McLeroy and be finalized and brought 

back.” A.S. then appealed to this Court.

9

MEDIATED SETTLEMENT AGREEMENT

In her sole issue, A.S. argues that the trial court erred in denying or refusing to rule on 

her objections to the Final Order because the order did not accurately reflect the MSA. She 

requests this Court reverse the Final Order and remand this case for entry of a new final order. 

 

8 The clerk’s record does not include the orders filed by the trial court on October 12 or October 19. 

However, the pleadings were filed in a mandamus proceeding filed on January 23, 2018, cause number 12-18-

00012-CV. We take judicial notice of our record in that proceeding. See Humphries, 349 S.W.3d at 820 n.1. The 

action taken by the trial court as to the oral pronouncements restricting A.S.’s access to the child, effective 

September 28, 2017, and entry of the orders on October 12 and 19 respectively, were the subject of that action. 

9 A.S. filed a petition for writ of mandamus on January 23, 2018, challenging the trial court’s October 19, 

2017, temporary order. We conditionally granted the writ on February 21, 2018. See In re K.M., No. 12-18-00012-

CV, 2018 WL 991570, at *5 (Tex. App.—Tyler Feb. 21, 2018, orig. proceeding) (mem. op.). Subsequently, R.M. 

filed an amended petition to modify the parent-child relationship on February 23, 2018. He requested a new 

temporary restraining order on grounds that circumstances of the child, a conservator, or other party affected by the 

order to be modified materially and substantially changed since the signing of the MSA. In support, he attached the 

affidavit of Pennye West. That same day, the trial court signed a temporary restraining order that immediately 

restrained A.S. from any possession of or access to K.A.M. except in a therapeutic setting in West’s offices. A.S. 

filed a petition for writ of mandamus on February 28, challenging the trial court’s February 23 temporary restraining 

order. We denied that petition after determining that A.S. failed to establish an abuse of discretion and, 

consequently, an entitlement to mandamus relief. See In re K.M., No. 12-18-00044-CV, 2018 WL 1837029, at *5 

(Tex. App.—Tyler Apr. 18, 2018, orig. proceeding) (mem. op.). Further, we withdrew our opinion and judgment of 

February 21, 2018 in cause number 12-18-00012-CV, and substituted an opinion in which we denied the petition as 

moot since signing of the February 23, 2018 temporary order. See In re K.M., No. 12-18-00012-CV, 2018 WL 

1835923, at *2–3 (Tex. App.—Tyler Apr. 18, 2018, orig. proceeding) (mem. op.).
6

R.M. responds that we should affirm the Final Order because A.S. did not seek arbitration to 

resolve her objections as required by the MSA or alternatively, the case should be remanded to 

the trial court with instructions to refer the case to arbitration with the mediator regarding A.S.’s 

objections.

10

Applicable Law

A mediated settlement agreement is binding on the parties if the agreement:

(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or 

underlined, that the agreement is not subject to revocation;

(2) is signed by each party to the agreement; and 

(3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

See TEX. FAM. CODE ANN. § 153.0071(d) (West Supp. 2017). If a mediated settlement 

agreement meets the requirements of Subsection (d), a party is entitled to judgment on the 

mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or 

another rule of law. See id. § 153.0071(e). A final judgment rendered pursuant to a mediated 

settlement agreement must be in strict or literal compliance with that agreement. Vickrey v. Am. 

Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976). The trial court has no power to supply 

terms, provisions, or conditions not previously agreed to by the parties. Keim v. Anderson, 943 

S.W.2d 938, 946 (Tex. App.—El Paso 1997, no writ). Modifications to settlement agreements 

are typically grounds for reversal, however, only where they add terms, significantly alter the 

original terms, or undermine the intent of the parties. Beyers v. Roberts, 199 S.W.3d 354, 362 

(Tex. App.—Houston [1st Dist.] 2006, pet. denied). Nonetheless, in rendering judgment on an 

MSA, trial courts may include terms necessary to effectuate and implement the parties’ 

agreement, so long as they do not substantively alter it. In re Lee, 411 S.W.3d 445, 458 n.17 

(Tex. 2013).

Analysis

We acknowledge that the history of this case presents a procedural “peculiarity.” A.S. 

filed two writs of mandamus in January and February 2018, to challenge temporary orders issued 

 

10 Here, the parties do not contest that the MSA is valid or that they are entitled to a judgment on the MSA. 

See TEX. FAM. CODE ANN. § 153.0071(e). 
7

by the trial court after the signing of the MSA, which changed her access to K.A.M. as agreed 

upon by the parties in the MSA. Even though the possession of and access to the child has been 

changed through these temporary orders, the limited scope of the appeal before us is to determine 

whether the trial court erred in denying A.S.’s motion for new trial and objections to entry of the 

Final Order. In doing so, we first examine whether there are discrepancies between the Final 

Order and the MSA.

In her brief, A.S. argues that the MSA and the Final Order differed in at least five ways 

by either using different terminology or adding and subtracting language. She contends that the 

MSA stated that R.M. would have the “additional exclusive right to designate medical care, 

including psych[ological] care.” However, the Final Order granted R.M. the exclusive right to 

consent to medical, dental, surgical treatment, and psychiatric and psychological treatment of 

K.A.M.

We apply the rules of contract interpretation to the MSA. See Milner v. Milner, 361 

S.W.3d 615, 619 (Tex. 2012); In re L.T.H., 502 S.W.3d 338, 346 (Tex. App.—Houston [14th 

Dist.] 2016, no pet.). Whether a contract is ambiguous is a question of law. Milner, 361 S.W.3d 

at 619. If the agreement’s language can be given a certain and definite meaning, the agreement 

is not ambiguous, and the contract’s construction is a matter for the court. Id. But if the 

agreement is susceptible to more than one reasonable interpretation, the agreement is ambiguous, 

creating a fact issue on the parties’ intent. Id.

Here, the terms regarding K.A.M.’s medical care used in the MSA and the Final Order 

are different. To designate medical care could mean to “[t]o indicate or specify; point out,” or 

“[t]o select and set aside for a duty, an office, or a purpose.” See THE AMERICAN HERITAGE 

COLLEGE DICTIONARY 376 (3d ed. 1993). However, consent could mean “[t]o give assent, as to 

the proposal of another; agree,” or “[a]cceptance or approval of what is planned or done by 

another; acquiescence.” Id. at 296. These terms are not equivalent and there is more than one 

reasonable interpretation between being the parent with the exclusive right to designate the 

child’s medical care from being the parent with the exclusive right to consent to her medical 

care.11 Because there is a fact question regarding the parties’ intent as to the child’s medical care, 

 

11 On December 10, 2017, the arbitrator made a decision on three disputed terms in the MSA and filed his 

decision in a letter to the amicus attorney and both parties. Part of the arbitrator’s decision included the differences, 

if any, between “designate” and “consent” in the MSA and the Final Order. Further, he made a determination 

regarding the proposed summer schedule and e-cigarettes. However, the remainder of A.S.’s alleged disputes 
8

the trial court should not have, in effect, resolved the disputed interpretation by denying A.S.’s 

motion for new trial and objections to the final order. 

The trial court held the language in the MSA required that the parties should arbitrate 

their differences and directed the parties to do so.

12 We agree that the language in the MSA 

mandated that “[a]ny disputes aris[ing] with regard to the interpretation or performance of this 

agreement or any of its provisions, including the necessity and form of closing documents . . . 

shall be submitted to the mediator who facilitated this agreement who shall be designated as an 

arbitrator.” “The essence of arbitration is a contractual commitment to have someone—other 

than a judge—decide a dispute.” In re M.W.M., Jr., 523 S.W.3d 203, 207 (Tex. App.—Dallas 

2017, orig. proceeding) (op.); see In re Lauriette, No. 05–15–00518–CV, 2015 WL 4967233, at 

*4 (Tex. App.—Dallas Aug. 20, 2015, orig. proceeding) (mem. op.) (“When parties enter into a 

valid agreement to arbitrate, the parties have agreed that the arbitrator and not the trial court or a 

jury will be the trier of fact for the disputed issue subject to the arbitration provision. []In that 

situation, the trial court has no authority to decide the issue that is subject to the arbitration 

provision.” (citations omitted)). A strong presumption favors arbitration, and courts resolve any 

doubts about an agreement’s “scope, waiver, and other issues unrelated to its validity in favor of 

arbitration.” BBVA Compass Inv. Sols. v. Brooks, 456 S.W.3d 711, 718 (Tex. App.—Fort 

Worth 2015, no pet.). If an arbitration agreement encompasses a dispute and the party opposing 

arbitration does not prove a defense, the trial court has “no discretion but to compel arbitration 

and stay its own proceedings.” In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex. 2001) 

(orig. proceeding); see Diggs v. Diggs, No. 14-11-00854-CV, 2013 WL 3580424, at *11 (Tex. 

App.–Houston [14th Dist.] July 11, 2013, no pet.) (mem. op.) (enforcing the terms of an MSA by 

returning the parties for arbitration before a mediator); see also Brand FX, LLC v. Rhine, 458 

 

between the MSA and the Final Order were not considered or mentioned in the arbitrator’s letter. The clerk’s record 

does not include the arbitrator’s decision on December 10, 2017. However, the decision was filed in a mandamus 

proceeding filed on February 28, 2018, cause number 12-18-00044-CV. We take judicial notice of our record in that 

proceeding. See Humphries, 349 S.W.3d at 820 n.1.

12 R.M. stated in his brief that in December 2017, the mediator arbitrated A.S.’s objections to the Final

Order. He stated that he filed the proposed amended final order, incorporating the arbitrated changes, with the trial 

court and attached a copy of that proposed order to his brief. However, the proposed amended final order does not 

appear in the clerk’s record in this case. We may not consider documents that are cited in the brief and attached as 

appendices if they are not formally included in the record on appeal. See Green v. Kaposta, 152 S.W.3d 839, 841 

(Tex. App.—Dallas 2005, no pet.).
9

S.W.3d 195, 204 (Tex. App.–Fort Worth 2015, no pet.) (“[A] trial court that refuses to compel 

arbitration under a valid and enforceable arbitration agreement has abused its discretion.”). 

In this case, there is at least one dispute regarding the interpretation of language between 

the MSA and the Final Order that triggers the arbitration provision in the MSA. Thus, once the 

trial court became aware of a discrepancy between the MSA and the Final Order, it should have 

ordered the parties to arbitration by the mediator as agreed to by the parties in the MSA. Even 

assuming the court believed there was no disparity between the MSA and Final Order, the trial 

court had sufficient reason to believe one or more discrepancies existed by mere virtue of R.M.’s 

counsel conceding some of the points raised by A.S. Thus, disputes between the MSA and the 

Final Order were made known to the court that required it to grant a new trial as to the Final 

Order and order the parties to arbitration with the mediator. See In re FirstMerit Bank, N.A., 52 

S.W.3d at 754; Diggs, 2013 WL 3580424 at *11. While the trial court challenged A.S.’s failure 

to consult the mediator prior to the October 26 hearing and was apparently frustrated with that 

failure, it did not grant A.S.’s motion for new trial and withdraw the Final Order.

13 The trial 

court did not have the authority to, in effect, resolve the parties’ dispute and decide the issues of 

interpretation by denying A.S.’s motion for new trial and leaving a final order with known 

discrepancies in place. See Milner, 361 S.W.3d at 622; In re L.T.H., 502 S.W.3d at 345; In re 

Lauriette, 2015 WL 4967233, at *4. Regardless of A.S.’s failure to comply with the arbitration 

provisions of the MSA, the trial court had no other option than to grant the motion for new trial. 

Therefore, the trial court erred in denying A.S.’s motion for new trial. A.S.’s sole issue is 

sustained.

Because of the unique procedural history of this case and our ruling reversing the Final 

Order, we instruct the trial court to order the parties to arbitration with the mediator regarding all 

of the disputed terms between the MSA, as identified in A.S.’s formal objections, and the Final 

Order. After the arbitrator makes his decision, the trial court, on application of a party, shall

confirm the award “[u]nless grounds are offered for vacating, modifying, or correcting an award 

under Section 171.088 or 171.091” of the Texas Arbitration Act. See TEX. CIV. PRAC. & REM.

 

13 Moreover, once the trial court became aware of a dispute between the MSA and the Final Order, it 

should have ordered the parties to arbitration with the mediator and stayed its own proceedings. See In re 

FirstMerit Bank, N.A., 52 S.W.3d at 754.
10

CODE ANN. § 171.087 (West 2011).14 In other words, the trial court shall confirm the arbitrator’s 

award in a final judgment, including the determination of all of the disputed items identified by 

A.S. in her objections.

CONCLUSION

For reasons set forth above, we have concluded that the trial court erred by denying 

A.S.’s motion for new trial. We therefore reverse the final order in suit affecting the parent-child 

relationship dated September 28, 2017, and remand the case for further proceedings consistent 

with this opinion and this Court’s instructions.

15 

GREG NEELEY

Justice

Opinion delivered August 8, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

 

14 The Texas Arbitration Act applies to an arbitration if the arbitration is binding. See In re Cartwright, 

104 S.W.3d 706, 711 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (citing TEX. CIV. PRAC. & REM.

CODE ANN. §§ 171.053-.054, 171.081, 171.087-.092 (West 2011).

15 We are aware by virtue of the mandamus proceedings filed in this case that matters have progressed far

beyond entering a final order accurately setting forth the agreements reached in the MSA. However, the focus of 

this appeal was to determine if discrepancies existed between the MSA and Final Order. Assuming, on remand, a 

final order is entered in compliance with the MSA, whether either party satisfies the burden necessary to obtain 

modification of the Final Order is unaffected by either the entry of a new final order consistent with this opinion or 

any subsequent appeal from the trial court’s rulings on modification of the agreements in the MSA.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 8, 2018

NO. 12-17-00402-CV

IN THE INTEREST OF K.A.M., A CHILD

Appeal from the 402nd District Court 

of Wood County, Texas (Tr.Ct.No. 2017-269)

THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, because it is the opinion of this court that there was error 

in the order of the court below, it is ORDERED, ADJUDGED and DECREED by this court that 

the order denying A.S.’s motion for new trial be reversed and the cause remanded to the trial 

court for further proceedings in accordance with the opinion of this court; all costs in both this 

Court and the court below are hereby assessed against the party incurring the same, for all of 

which execution may issue; and that this decision be certified to the court below for observance.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.