Terex Utilities, Inc. D/B/A Terex Services, Inc. v. Robert Fondren, Jr., Et Ux, Teresa Fondren, and Dwayne Proetel

• Court: Court of Appeals of Texas
• Decided: August 16, 2024
• Docket: 08-23-00131-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

TEREX UTILITIES, INC. d/b/a TEREX § SERVICES, INC., No. 08-23-00131-CV § Appellant, Appeal from the § v. 166th Judicial District Court § of Bexar County, Texas ROBERT FONDREN, JR. ET UX, § TERESA FONDREN, and DWAYNE (TC# 2019-CI-12737) PROETEL, § Appellees.

MEMORANDUM OPINION

Before this Court is Appellant’s agreed motion to dismiss, which it filed pursuant to Texas

Rule of Appellate Procedure 42.1(a)(1). The motion states that the parties have entered into a

settlement agreement settling the dispute underlying this appeal. Pursuant to that agreement, the

parties agreed to file a motion to dismiss the appeal. Additionally, the parties agreed that each side

would bear their respective attorney’s fees and costs incurred.

Rule 42.1 provides the actions a court may take to dispose of an appeal on the motion of

appellant or by agreement. On appellant’s motion, this Court may dismiss the appeal. Tex. R. App.

P. 42.1(a)(1). On the other hand, when parties file an agreement signed by all parties or their attorneys, the court may: “(A) render judgment effectuating the parties’ agreement; (B) set aside

the trial court’s judgement 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.” Tex. R. App. P. 42.1(a)(2)(A)–(C).

Appellant’s agreed motion to dismiss expressly states it is based on Rule 42.1 (a)(1). No

agreement signed by the parties, or their attorneys, has been filed with the clerk as contemplated

by Rule 42.1 (a)(2). We construe the agreed motion as appellant’s motion to dismiss. The motion

is granted. See Tex. R. App. P. 42.1(a)(1) (allowing appellate courts to dismiss an appeal on the

motion of appellant). Costs of the appeal are taxed such that each party bears its own costs. Tex. R.

App. P. 42.1(d).

GINA M. PALAFOX, Justice

August 16, 2024

Before Alley, C.J., Palafox, and Soto, JJ.