Wallach & Andrews, P.C. v. GC Museum Partners, L.P.

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-13-00114-CV

WALLACH & ANDREWS, P.C. APPELLANT

V.

GC MUSEUM PARTNERS, L.P. APPELLEE

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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

MEMORANDUM OPINION 1 AND JUDGMENT ------------

Pending before this court is “Appellant’s Motion to Set Aside the Judgment,

Dismiss and Remand to the Trial Court” pursuant to Texas Rule of Appellate

Procedure 42.1(a)(2)(B). On April 23, 2013, this court entered an order referring

the case to mediation pursuant to section 154.021 of the civil practice and

remedies code. Mediation occurred on May 17, 2013, and the parties settled all

1 See Tex. R. App. P. 47.4. issues involved in this appeal. On September 24, 2013, the parties filed a written

agreement between the parties stating they agreed to file a motion asking this

court to set aside the trial court’s March 8, 2013 Order Granting Plaintiff’s Cross-

Motion for Summary Judgment and Denying Defendant’s Motion for Summary

Judgment without regard to the merits and to remand this case to the trial court

for disposition in accordance with the parties’ settlement agreement.

In its unopposed motion, Appellant asks us to effectuate the parties’ written

agreement by setting aside the judgment, dismissing the appeal, and remanding

the case to the trial court for further disposition in accordance with the parties’

settlement agreement. 2 We have considered the motion, along with the parties’

agreement, and it is the court’s opinion that the motion should be granted.

Accordingly, without regard to the merits, we set aside the March 8, 2013 Order

Granting Plaintiff’s Cross-Motion for Summary Judgment and Denying

Defendant’s Motion for Summary Judgment and remand this case to the trial

court for rendition of judgment in accordance with the parties’ settlement

agreement. See Tex. R. App. P. 42.1(a)(2)(B).

2 This court may dismiss an appeal pursuant to an agreement of the parties, but we are not permitted to dismiss and remand for further proceedings. See Tex. R. App. P. 43.2; In re Ortega, 225 S.W.3d 610, 610 n.1 (Tex. App.—El Paso 2006, no pet.). However, we may 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 of the parties. See Tex. R. App. P. 42.1(a)(2)(B). Consequently, we interpret Appellant’s motion as requesting that we set aside the trial court's judgment without regard to the merits and that we remand to the trial court for further proceedings.

2 Costs of the appeal shall be paid by the party incurring same, for which let

execution issue. See Tex. R. App. P. 42.1(d).

PER CURIAM

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: October 31, 2013