Opinion
07-23-00381-CV
12-04-2023
RAIN AND HAIL, LLC, APPELLANT v. VICKI MILLOY AND DEWAYNE DUNN, APPELLEES
On Appeal from the 287th District Court Parmer County, Texas Trial Court No. 11697, Honorable Kathryn H. Gurley, Presiding
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
PER CURIAM
Appellant, Rain and Hail, LLC, appeals from the trial court's interlocutory Order on Plaintiff's Motion to Dismiss Counterclaim. Now pending before this Court is an "Agreed Motion to Dismiss with Prejudice" filed by Rain and Hail and Appellees, Vicki Milloy and Dwayne Dunn. According to the motion, the parties have settled the underlying action and request that the Court (1) dismiss the appeal and (2) render a judgment "dismissing any and all claims and causes of action asserted by, or which could have been asserted by, [the parties] with prejudice to the rights of the parties to re-file same . . . ." We construe the latter request for relief as a motion to dismiss the underlying case with prejudice.
Rule of Appellate Procedure 42.1 permits us to dismiss an appeal at the appellant's request or, in accordance with the agreement of the parties, to render judgment effectuating the parties' agreement, remand the case to the trial court for rendition of judgment in accordance with the agreement, or abate the appeal and permit proceedings in the trial court to effectuate the agreement. The trial court has not issued a final judgment in this case. Thus, the parties' request for dismissal of the underlying case requests relief beyond the scope of our appellate review of an interlocutory order. For this reason, rather than dismiss the appeal or render judgment, we remand the cause to the trial court for rendition of a judgment in accordance with the parties' agreement. See Tex. R. App. P. 42.1(2)(B); Herndon v. Trojan Tubular Servs., No. 12-19-00193-CV, 2019 Tex.App. LEXIS 8703, at *2 (Tex. App.-Tyler Sep. 27, 2019, no pet.) (doing same).