Larry Menard v. Sherry L. Cathey AKA Sherry L. Kuenstler and Richard Kuenstler

• Court: Court of Appeals of Texas
• Decided: December 12, 2024
• Docket: 13-23-00396-CV
• Status: Published

Opinion

NUMBER 13-23-00396-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG ____________________________________________________________

LARRY MENARD, Appellant,

v.

SHERRY L. CATHEY A/K/A SHERRY L. KUENSTLER AND RICHARD KUENSTLER, Appellees. ____________________________________________________________

ON APPEAL FROM THE 135TH DISTRICT COURT OF GOLIAD COUNTY, TEXAS ____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Silva Memorandum Opinion by Justice Silva

Appellant Larry Menard filed a notice of appeal from the trial court’s August 22,

2023 final judgment. Appellees Sherry L. Cathey a/k/a Sherry L. Kuenstler and Richard Kuenstler subsequently filed with this Court a motion to vacate and set aside the judgment

entered in their favor.

On November 18, 2024, we ordered the parties to confer on “whether they agree

that the trial court’s judgment should be set aside without regard to the merits and the

case remanded to the trial court for rendition of judgment” and to advise the Court within

ten days whether such an agreement was reached. See TEX. R. APP. P. 42.1(a)(2)(B).

On December 2, 2024, appellant filed an “Agreed Motion to Set Aside Judgment of the

Lower Court,” approved as to form and substance and signed by all parties’ counsel. In

the motion, the parties advise that they have reached an agreement and request that this

Court vacate the trial court’s judgment signed on August 22, 2023, without regard to the

merits, and that this case be remanded to the trial court for rendition of judgment and any

further proceedings deemed necessary. See id.

Texas Rule of Appellate Procedure 42.1(a)(2), governing the voluntary dismissal

of civil appeals by agreement, allows an appellate court to:

(A) render judgment effectuating the parties’ agreement;

(B) set aside the trial court’s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the agreement; or

(C) abate the appeal and permit proceedings in the trial court to effectuate the agreement.

Id. R. 42.1(a)(2). Accordingly, we grant the “Agreed Motion to Set Aside Judgment of the

Lower Court,” vacate the August 22, 2023 judgment without regard to the merits, dismiss

the appeal, and remand the case to the trial court for rendition of judgment in accordance

2 with the parties’ agreement and for any further proceedings deemed necessary. 1 See id.;

see also Estate of Steward, No. 13-23-00162-CV, 2023 WL 5486230, at *1 (Tex. App.—

Corpus Christi–Edinburg Aug. 24, 2023, no pet.) (mem. op.). Costs are taxed against

appellant. See TEX. R. APP. P. 42.1(d) (“Absent agreement of the parties, the court will

tax costs against the appellant.”). Having dismissed the appeal at the parties’ request, no

motion for rehearing will be entertained.

CLARISSA SILVA Justice

Delivered and filed on the 12th day of December, 2024.

1 All other pending motions in the appeal are dismissed as moot.