Nowak Construction Co., Inc. v. Oscar Avalos

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

NOWAK CONSTRUCTION CO. INC., § No. 08-10-00261-CV Appellant, § Appeal from the v. § 327th Judicial District Court § OSCAR AVALOS, of El Paso County, Texas § Appellee. (TC# 2008-1103) §

MEMORANDUM OPINION

Pending before the Court is the joint motion of Nowak Construction Co., Inc., Appellant,

and Oscar Avalos, Appellee. They request that the Court: (1) withdraw the Court’s opinion and

judgment dated February 15, 2012; (2) reverse the judgment of the trial court without reaching the

merits of the case; and (3) remand the cause to the trial court to effectuate the settlement of the

parties, pursuant to TEX.R.APP.P. 42.1(a)(2).

Texas Rule of Appellate Procedure 42.1(a) permits an appellate court to dispose of an

appeal in accordance with an agreement signed by the parties or their attorneys and filed with the

clerk. See TEX.R.APP.P. 42.1(a). The appellate court maintains jurisdiction to determine

whether to withdraw any opinion it has already issued. See TEX.R.APP.P. 42.1(c); compare

Polley v. Odom, 963 S.W.2d 917, 918 (Tex.App.--Waco 1998, no pet.)(per curiam)(holding that

court’s duty constrained it to publish prior opinion); Lee v. Lee, 2009 WL 541048, *1

(Tex.App.--El Paso Mar. 4, 2009, no pet.)(memo. op.)(withdrawing opinion pursuant to settlement

agreement). Pursuant to Texas Rule of Appellate Procedure 43.2, the Court of Appeals may “reverse the trial court’s judgment and remand the case for further proceedings.” TEX.R.APP.P.

43.2(d).

The joint motion is GRANTED. This Court’s opinion issued February 15, 2012 is

withdrawn and our judgment of that date is vacated. See TEX.R.APP.P. 42.1(a)(c). Without

reaching the merits of the appeal, we hereby REVERSE the judgment of the trial court and

REMAND the matter for further proceedings as necessary to effectuate the parties’ agreement.

As the motion does not indicate the parties have agreed otherwise, costs of appeal will be paid by

the Appellant. See TEX.R.APP.P. 42.1(d).

April 11, 2012 CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.