Williams Brothers Construction Co., Inc v. Southwestern Bell Telephone Company

Opinion

Opinion issued July 30, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00545-CV ——————————— WILLIAMS BROTHERS CONSTRUCTION CO., INC., Appellant V. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee

On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2009-81324

MEMORANDUM OPINION

This is an appeal of the trial court’s judgment signed April 2, 2012. No

opinion has issued in this case. The parties have filed a joint motion to dismiss the

appeal, asking this Court “to render judgment dismissing this appeal and

remanding the case to the trial court in accordance with the parties’ agreement,” citing Texas Rule of Appellate Procedure 42.1(a)(2)(A). However, under the

Rules of Appellate Procedure, this Court cannot both dismiss the appeal and

remand the cause with instructions to the trial court. See Lui v. Int’l Bus. Machs.

Corp., No. 01-05-00742-CV, 2005 WL 2850332, at *1 (Tex. App.—Houston [1st

Dist.] Oct. 27, 2005, no pet.) (per curiam) (mem. op.). Rather, Rule 42.1(a)(2)(A)

provides, “In accordance with an agreement signed by the parties or their attorneys

and filed with the clerk, the court may . . . render judgment effectuating the parties’

agreements.” TEX. R. APP. P. 42.1(a)(2)(A). Rule 42.1(a)(2)(B) permits an

appellate court to “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 agreements.” TEX. R. APP. P. 42.1(a)(2)(B).

Given the content of the parties’ agreed motion, we construe it as requesting

that we set aside the trial court’s judgment without regard to the merits and that we

remand the case for rendition of judgment in accordance with the parties’

settlement agreement. See id. As so construed, we grant the motion, set aside the

judgment without regard to the merits, and remand this cause to the trial court for

further proceedings. See id. We dismiss any other pending motions as moot.

PER CURIAM

Panel consists of Justices Keyes, Sharp, and Huddle.