Panterra Corp. v. American Dairy Queen

908 S.W.2d 300, 1995 WL 568985

• Court: Court of Appeals of Texas
• Decided: September 27, 1995
• Docket: 04-93-00801-CV
• Status: Published

Opinions

OPINION

LOPEZ, Justice.

The parties have filed a joint “Stipulation and Agreement of Voluntary Dismissal.” See Tex.R.App.P. 59(a)(1)(A). They state that they have fully compromised and settled the issues in dispute. The parties request that we dismiss the appeal and affirm the judgment of the court below. We cannot do both.

At least as early as 1943, the Texas Supreme Court chastised a court of appeals for dismissing an appeal as moot but leaving the district court’s judgment in full force. See Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863, 863 (1943). The court held that this was error and clearly set forth the applicable rule of law: “When a cause becomes moot on appeal, all previous orders and judgments should be set aside and the cause, not merely the appeal, dismissed.” Id. (emphasis added).

By 1958, the supreme court was referring to this rule of law as “long-established.” See Guajardo v. Alamo Lumber Co., 159 Tex. 225, 317 S.W.2d 725, 726 (1958). The court reiterated that when a case becomes moot while on appeal, all previous orders are set aside by the appellate court and the cause is dismissed. Id. The supreme court has consistently followed this rule. See e.g., Speer v. Presbyterian Children’s Home, 847 S.W.2d 227, 228 (Tex.1993); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hughes, 827 S.W.2d 859, 859 (Tex.1992); Raborn v. Davis, 795 S.W.2d 716, 717 (Tex.1990); Dunn v. Dunn, 439 S.W.2d 830, 833 (Tex.1969); Texas Foundries, Inc. v. Internad Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 461 (1952). Even the court of criminal appeals has recognized the application of this rule in civil appeals. See Chacon v. State, 745 S.W.2d 377, 378 (Tex.Crim.App.1988).

The United States Supreme Court recently addressed the vacatur of lower court judgments when a case becomes moot while on appeal and decided that vacatur is not automatically required. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 518 U.S. -, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). This case, however, is not binding precedent because the issue decided was one of federal procedural law. As such, it does not apply to state courts’ application of state procedural law.

The law in Texas requiring vacatur is longstanding and well-established by our supreme court; this court is bound to follow it. Whether to revisit the issue and follow the holding of the United States Supreme Court in Bonner Mall is for the Texas Supreme Court, not this court, to decide.

On June 16, 1995, this court issued an order explaining to the parties our inability to dismiss the appeal as moot and affirm the judgment below. We allowed the parties an opportunity to clarify the relief they sought, or to withdraw the motion to dismiss and substitute an agreed motion to reverse and remand for entry of a judgment in conformity with the settlement agreement. Appellants responded as follows: “If it is the desire of Appellees’ counsel that other action be taken we are prepared to enter into an appropriate agreement. Otherwise on behalf of Appellants, we would request that the court issue its ruling on the Stipulation Agreement of Voluntary Dismissal [sic] in accordance with the law.” Appellees did not respond.

The “Stipulation and Agreement of Voluntary Dismissal” is granted in part. The cause is moot. All previous orders and judgments, both trial and appellate, are set aside and the cause is dismissed. See Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Hughes, 827 S.W.2d at 859; Exxon Corp. v. Butler, 619 S.W.2d 399, 399 (Tex.1981); Freeman v. Burrows, 171 S.W.2d at 863-64. Costs of appeal are taxed against the parties who have incurred them.