State v. Luby's Fuddruckers Restaurants, LLC

Opinion

NUMBER 13-16-00173-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________

THE STATE OF TEXAS, Appellant,

v.

LUBY’S FUDDRUCKERS RESTAURANTS, LLC, Appellee. ____________________________________________________

On appeal from the County Civil Court at Law No. 4 of Harris County, Texas. ____________________________________________________

ORDER

Before Chief Justice Valdez and Justices Rodriguez and Hinojosa Order Per Curiam This Court issued its memorandum opinion on June 15, 2017, affirming the trial

court’s judgment in part, and reversing and rendering it in part. On July 25, 2017, the

parties filed their Joint Motion to Remand for Entry of an Agreed Judgment Pursuant to Settlement. In the motion, the parties stated that they “have now fully compromised and

settled the dispute involved in this litigation.” They jointly requested that this Court

grant rehearing and modify [our] judgment to affirm the judgment in part (on Luby’s claim for damages to the remainder property), reverse the judgment in part (on Luby’s counterclaim for lost profits), and remand this case to the trial court so that the trial court can enter the Agreed Judgment contemplated by the parties’ Rule 11 Settlement Agreement.

An appellate court is not authorized to grant rehearing, modify its judgment to

affirm in part and reverse in part and remand the cause for further proceedings related to

a settlement. Instead, in a voluntary dismissal and settlement civil case, rule 42.1(a)

provides authority for this Court to: (1) render judgment effectuating the parties’

agreement; (2) set aside the trial court’s judgment without regard to the merits and

remand the case for rendition in accordance with the agreement; or (3) abate the appeal

and permit proceedings in the trial court to effectuate the agreement. See TEX. R. APP.

P. 42.1(a). Based on the above, we construe the joint motion as requesting that we “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 signed by the

parties. Id. R. 42.1(a)(2)(B).

We grant the motion, as construed. We set aside the trial court’s judgment with

regard to the merits, and we remand the cause to the trial court for the rendition of

judgment in accordance with the parties’ agreement.1 If our understanding of the parties’

request is incorrect, we invite the parties to file a motion to reconsider our ruling on the

motion within five days of the date of this order.

1The parties have also filed a joint motion to expedite the issuance of the mandate. We grant the motion to expedite. Mandate will issue on August 18, 2017.

2 We withdraw our previous judgment of June 15, 2017, and issue a substituted

judgment. Our memorandum opinion of June 15, 2017, will not be withdrawn.

Delivered and filed the 3rd day of August, 2017.