Opinion
No. 08-06-00259-CV.
January 11, 2007.
Appeal from the 171st Judicial District Court, El Paso County, Texas TC# 2006-429.
Before CHEW, C.J., MCCLURE, and CARR, JJ.
MEMORANDUM OPINION
Appellee EPT Land Assets, L.P. has filed a "Motion for Clarification of Partial Dismissal," asking the Court to clarify our November 16, 2006 opinion and judgment, in which the Court dismissed the claims against Appellee EPT Land Assets, L.P. and dismissed Appellee EPT Land Assets, L.P. as a party from the pending appeal. We grant Appellee EPT Land Assets, L.P.'s motion for clarification. We withdraw our opinion and judgment dated November 16, 2006 and substitute the following opinion to clarify the issue raised by Appellee EPT Land Assets, L.P. in its motion.
Pending before the Court is the Appellants' motion to dismiss their appeal against Appellee EPT Land Assets, L.P. only and to dismiss Appellee EPT Land Assets, L.P. only from the appeal. Texas Rule of Appellate Procedure 42.1(a)(1) states:
(a) On Motion or By Agreement. The appellate court may dispose of an appeal as follows:
(1)On Motion of Appellant. 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).
Appellants have complied with the requirements of Rule 42.1(a)(1). Appellants request their claims against Appellee EPT Land Assets, L.P. only be dismissed from the appeal with prejudice to the rights of Appellants to re-file same or any part thereof and that each of the parties hereto go forth bearing its own costs. Appellants also state, "This motion relates only to Appellants' appeal against EPT Land Assets and/or the transactions by which EPT Land Assets, L.P. acquired title to Parcels C and D referenced in Appellants' petition in the trial court." [Emphasis added]. Appellee EPT Land Assets, L.P. has indicated its agreement to the filing of this motion.
It is unclear from Appellants' motion how the motion relates to "the transactions by which EPT Land Assets, L.P. acquired title to Parcels C and D" or how Appellants' claims against Appellee EPT Land Assets, L.P. in the underlying cause relate to the transactions by which EPT Land Assets, L.P. acquired title to Parcels C and D. Therefore, we decline to hold broadly that by dismissing Appellants' claims against EPT Land Assets, L.P. and dismissing EPT Land Assets, L.P. as a party, we are also dismissing the Appellants' challenges to the transactions by which EPT Land Assets acquired title to Parcels C and D from the City. Therefore, we dismiss the Appellants' claims against Appellee EPT Land Assets, L.P. ONLY with prejudice and Appellee EPT Land Assets, L.P. ONLY is dismissed from the appeal. For clarification purposes, to the extent that Appellants' claims against Appellee EPT Land Assets, L.P. in the underlying cause are the same as Appellants' challenges to the transactions by which EPT Land Assets, L.P. acquired title to Parcels C and D from the City, those challenges are likewise dismissed from the appeal. The other parties and claims remain pending in this appeal.