Robert B. James, DDS, Inc. Robert B. James, DDS, Individually Jean James, Individually And Alexis Mei Pyles, Individually v. Cassandra J. Elkins, DDS

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00160-CV

ROBERT B. JAMES, DDS, INC.; Robert B. James, DDS, Individually; Jean James, Individually; and Alexis Mei Pyles, Individually, Appellants

v.

Cassandra J. ELKINS, DDS, Appellee

From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2016CI19860 Honorable Karen H. Pozza, Judge Presiding

Sitting: Marialyn Barnard, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: July 25, 2018

DISMISSED IN PART

On May 30, 2018, this court issued its opinion and judgment in this appeal. On July 5,

2018, thirty-six days after the opinion and judgment issued, Appellant Alexis Mei Pyles filed an

unopposed motion to dismiss her appeal. In her motion, Pyles states that she and Appellee Elkins

have resolved all issues between them and Pyles no longer wishes to pursue her appeal.

Accordingly, Pyles requests that this court grant her motion and order that her appeal against Elkins

be dismissed with each party paying its own costs. Pyles makes no mention in her motion of this

court’s previously-issued opinion and judgment. 04-17-00160-CV

“In accordance with a motion of appellant, the court may dismiss the appeal or affirm the

appealed judgment or order unless disposition would prevent a party from seeking relief to which

it would otherwise be entitled.” TEX. R. APP. P. 42.1(a)(1). “A severable portion of the proceeding

may be disposed of under (a) if it will not prejudice the remaining parties.” Id. 42.1(b) “In

dismissing a proceeding, the appellate court will determine whether to withdraw any opinion it has

already issued. An agreement or motion for dismissal cannot be conditioned on withdrawal of the

opinion.” Id. 42.1(c).

Generally, when a party files an unopposed or joint motion to dismiss an appeal after the

opinion has been issued, the court will grant the motion to dismiss but not withdraw the court’s

opinion. See Camp Mystic, Inc. v. Eastland, No. 04-12-00102-CV, 2013 WL 241091, at *1 (Tex.

App.—San Antonio Jan. 23, 2013, no pet) (mem. op.) (per curiam); United Servs. Auto. Ass’n v.

Pigott, No. 04-02-00696-CV, 2004 WL 1932794, at *1 (Tex. App.—San Antonio Sept. 1, 2004,

no pet.) (mem. op.) (per curiam); Tinley ex rel. Chamberlain v. Chamberlain, No. 04-98-00697-

CV, 1999 WL 93391, at *1 (Tex. App.—San Antonio Feb. 17, 1999, no pet.) (not designated for

publication) (per curiam) (granting motion to dismiss appeal but not withdrawing previously-

issued opinion).

If such a motion to dismiss an appeal also requests that this court withdraw its previously-

issued opinion, the court will exercise its discretion in determining whether to withdraw the

opinion. Compare Hill Country-San Antonio Mgmt. Servs., Inc. v. Trejo, No. 04-13-00559-CV,

2014 WL 6805102, at *1 (Tex. App.—San Antonio Dec. 3, 2014, no pet.) (mem. op.) (per curiam)

(granting motion to dismiss the appeal but denying appellant’s request to withdraw previously-

issued opinion) with Drury Sw., Inc. v. Louie Ledeaux #1, Inc., No. 04-12-00837-CV, 2014 WL

3013111, at *1 (Tex. App.—San Antonio July 2, 2014, no pet.) (mem. op.) (per curiam) (granting

parties’ request to withdraw previously-issued opinion).

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Pyles’s motion does not request that this court withdraw its previously-issued opinion.

Accordingly, without withdrawing this court’s opinion in this appeal, we grant Pyles’s unopposed

motion to dismiss her appeal.

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