in the Estate of Janice Lee Wilhelm

• Court: Court of Appeals of Texas
• Decided: July 20, 2022
• Docket: 10-19-00051-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00051-CV

IN THE ESTATE OF JANICE LEE WILHELM, DECEASED

From the 369th District Court Leon County, Texas Trial Court No. O-12-00012

MEMORANDUM OPINION

Appellants Howard Wayne Farmer and Jennifer Christine Davis and Appellee

Christine Bain have filed an “Agreed Motion to Dismiss with Prejudice.” The parties

state that “[a]ll matters of fact and things in controversy between all of the Parties have

been fully and finally compromised and settled by the Parties.” Appellants therefore

request that we dismiss with prejudice all claims that have been or could have been

brought by them against Appellee, and Appellee requests that we dismiss with prejudice

all claims that have been or could have been brought by her against Appellants. The

parties then request that we dismiss this appeal and tax costs against the party incurring

same. We have no authority to dismiss the suit in the trial court and, at the same time,

dismiss the appeal. We have the authority, however, to vacate the trial court’s judgment

and then dismiss the case by agreement of the parties. See TEX. R. APP. P. 42.1(a)(2)(A);

43.2(e); Young Materials Corp. v. Smith, 4 S.W.3d 84, 84–85 (Tex. App.—Waco 1999, no pet.)

(per curiam) (mem. op.); see also Garcia v. Meece, No. 10-19-00052-CV, 2020 WL 1809466,

at *1 (Tex. App.—Waco Apr. 8, 2020, no pet.) (mem. op.).

Accordingly, the parties’ “Agreed Motion to Dismiss with Prejudice” is granted to

the extent authorized. The trial court’s Order signed on February 1, 2019, is vacated, and

the case is dismissed with prejudice. See TEX. R. APP. P. 42.1(a)(2)(A); 43.2(e). Costs of

appeal are taxed against the party incurring same.

Because the Court was unable to grant the entirety of the parties’ motion, the Court

has endeavored to implement the substance of the parties’ agreed motion to achieve the

same result. If the parties determine that the judgment of the Court does not accomplish

the parties’ intended result, a timely motion for rehearing must be filed that addresses

the manner in which the Court can implement the agreement of the parties within the

limitations of the Rules of Appellate Procedure. See id. R. 42.1; 49.1.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Vacated and dismissed

In re Estate of Wilhelm Page 2 Opinion delivered and filed July 20, 2022 [CV06]

In re Estate of Wilhelm Page 3