David Herbig, Trustee of the Welch Family Trust C v. Jeanne Manry Welch, Trustee of the Welch Manry Family Trust

• Court: Court of Appeals of Texas
• Decided: July 15, 2025
• Docket: 01-22-00080-CV
• Status: Published

Opinion

Opinion issued July 15, 2025

In the

Court of Appeals for the

First District of Texas ———————————— NO. 01-22-00080-CV ——————————— DAVID HERBIG, TRUSTEE OF THE WELCH FAMILY TRUST C, Appellant

v.

JEANNE MANRY WELCH, TRUSTEE OF THE WELCH MANRY FAMILY TRUST, Appellee

On Appeal from the 164th Judicial District Court Harris County, Texas Trial Court Case No. 2020-07680

MEMORANDUM OPINION

Appellant David Herbig, Trustee of the Welch Family Trust C appeals from

(1) a November 9, 2020 order granting summary judgment in favor of appellee Jeanne Manry Welch, Trustee of the Welch Manry Family Trust (the Summary

Judgment Order), (2) a May 26, 2021 order denying appellant’s motion to overrule

objections and compel responses to requests for production, and (3) a final judgment

dated January 8, 2022 (the Final Judgment).

On June 27, 2023, this Court issued an opinion vacating a portion of the

Summary Judgment Order, incorporated into the Final Judgment, that voided a

warranty deed from grantor Jeanne F. Welch a/k/a Jeanne F. Manry, Trustee of the

Welch Manry Family Trust, to grantee Lewis Sims, Successor Trustee of the Welch

Family Trust B, dated October 7, 2019, and filed in the Official Public Records of

Blanco County, Texas under File No. 193583. This Court affirmed the remainder of

the trial court’s judgment as modified.

On September 26, 2023, before the Court’s extended deadline to file a motion

for rehearing from its June 27, 2023 decision, appellee filed an unopposed motion

to abate the appeal pending mediation, which this Court granted on October 5, 2023.

This Court has since granted several unopposed or joint requests to continue the

abatement of the appeal pending mediation. In an April 28, 2025 letter, the parties

asked the Court to continue the abatement of the appeal an additional two weeks,

and noted they anticipated it would be their last such request.

On May 1, 2025, the parties filed a joint motion pursuant to rules 42.1 and

43.2 of the Texas Rules of Appellate Procedure. In the motion, the parties stated

2 they had reached a settlement in which they had agreed to no longer pursue litigation

in this matter. To effectuate the settlement agreement, the parties asked this Court

to: (1) reinstate the appeal; (2) vacate its June 27, 2023 judgment; (3) withdraw its

June 27, 2023 opinion; (4) vacate the trial court’s Summary Judgment Order and

Final Judgment, and dismiss the case with prejudice with each party to bear his or

her own costs; and (5) dismiss this appeal, with each party to bear his or her own

costs.

Under rule 42.1(a)(2) of the Texas Rules of Civil Procedure, the Court may

dispose of an appeal in accordance with “an agreement signed by the parties or their

attorneys and filed with the clerk.” (Emphasis added.) Because the parties’ May 1,

2025 joint motion did not include a copy of the settlement agreement referenced in

the motion, we issued on June 5, 2025 an order stating that: “Unless a copy of the

parties’ settlement agreement is filed within 10 days of the date of this order, we

will construe the parties’ joint motion as requesting that this Court (1) reinstate the

appeal, (2) vacate its June 27, 2023 judgment, (3) withdraw its June 27, 2023

opinion, and (4) reverse the trial court’s Summary Judgment Order and Final

Judgment and remand to the trial court to render judgment in accordance with the

parties’ settlement agreement. See Run v. Xu, No. 01-23-00917-CV, 2024 WL

3892463, at *1 (Tex. App.—Houston [1st Dist.] Aug. 22, 2024, no pet.) (‘Because

3 this Court lacks a copy of the settlement agreement, we construe the motion as

requesting reversal and remand to the trial court.’).”

On June 16, 2025, the parties responded via letter to the Court’s June 5, 2025

order and attached to that letter a copy of the settlement agreement referenced in

their May 1, 2025 joint motion. Accordingly, we reinstate the appeal and withdraw

our opinion and judgment dated June 27, 2023. We order: (1) the trial court’s

November 9, 2020 summary judgment order is vacated, (2) the trial court’s final

judgment dated January 8, 2022 is vacated, (3) appellee’s suit is dismissed with

prejudice, with each party to bear his or her own costs, and (4) the appeal is

dismissed, with each party to bear his or her own costs. The parties’ April 28, 2025

request to continue the abatement is denied as moot.

PER CURIAM

Panel consists of Justices Guerra, Gunn, and Dokupil.1

1 The Honorable Sarah Beth Landau and the Honorable Julie Countiss, former Justices of this Court, were members of the Panel when the original proceeding was submitted and participated in our June 27, 2023 decision. Their terms of office expired on December 31, 2024, and they did not participate in this decision. See TEX. R. APP. P. 49.3.