City of Fort Worth v. Julius D. Zimlich

Court of Appeals of Texas

City of Fort Worth v. Julius D. Zimlich

DecidedMay 17, 2001

Docket03-97-00475-CV

StatusPublished

This text of City of Fort Worth v. Julius D. Zimlich (City of Fort Worth v. Julius D. Zimlich) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Fort Worth v. Julius D. Zimlich, (Tex. Ct. App. 2001).

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Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON REMAND

NO. 03-97-00475-CV

City of Fort Worth, Appellant

v.

Julius D. Zimlich, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 94-08668, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

The parties have filed a joint motion to dismiss the appeal based on a settlement agreement. As part of that motion, the parties have asked us to render a final judgment that plaintiff/appellee take nothing from defendant/appellant. The court cannot both dismiss an appeal and render judgment. See Panterra Corp. v. American Dairy Queen, 908 S.W.2d 300, 301 (Tex. App.--San Antonio 1995, no writ) (cannot dismiss and affirm). However, given that the trial court judgment awarded plaintiff/appellee recovery against defendant/appellant, and given the motion's request that we render judgment that plaintiff/appellee take nothing, we construe the motion as a joint agreed motion to reverse the trial court's judgment and render judgment that plaintiff/appellee Zimlich take nothing. In that posture, we grant the motion. See Tex. R. App. P. 42.3(c) (may reverse trial court judgment and render judgment that trial court should have rendered).

The parties have also requested that costs be taxed to the parties incurring same, which our judgment will reflect.

John E. Powers, Justice

Before Justices Kidd, B. A. Smith and Powers^*

Reversed and Rendered

Filed: May 17, 2001

Do Not Publish

^* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON REMAND

NO. 03-97-00475-CV

City of Fort Worth, Appellant

v.

Julius D. Zimlich, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 94-08668, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING

The parties have filed a joint motion to dismiss the appeal based on a settlement agreement. As part of that motion, the parties have asked us to render a final judgment that plaintiff/appellee take nothing from defendant/appellant. The court cannot both dismiss an appeal and render judgment. See Panterra Corp. v. American Dairy Queen, 908 S.W.2d 300, 301 (Tex. App.--San Antonio 1995, no writ) (cannot dismiss and affirm). However, given that the trial court judgment awarded plaintiff/appellee recovery against defendant/appellant, and given the motion's request that we render judgment that plaintiff/appellee take nothing, we construe the motion as a joint agreed motion to reverse the trial court's judgment and render judgment that plaintiff/appellee Zimlich take nothing. In that posture, we grant the motion. See Tex. R. App. P. 42.3(c) (may reverse trial court judgment and render judgment that trial court should have rendered).

The parties have also requested that costs be taxed to the parties incurring same, which our judgment will reflect.

John E. Powers, Justice

Before Justices Kidd, B. A. Smith and Powers^*

Reversed and Rendered

Filed: May 17, 2001

Do Not Publish

^* Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

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City of Fort Worth v. Julius D. Zimlich, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-fort-worth-v-julius-d-zimlich-texapp-2001.

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