Opinion
NUMBER 13-21-00053-CV
03-11-2021
CLEO SEABREAK, Appellant, v. L.S., Appellee.
On appeal from the 343rd District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Cleo Seabreak appealed a judgment rendered against her and in favor of appellee, L.S., a minor child, in trial court cause number S-19-5210CV-C in the 343rd District Court of San Patricio County, Texas. The parties to this appeal have now filed an agreed motion to dismiss the appeal. According to the motion, the appellant and the appellee "have agreed to the voluntary dismissal of this appeal," that "this appeal should not affect the final judgment rendered by the trial court," and that "the costs of this appeal should be taxed against the party incurring the same." The parties further request that we render judgment effectuating their agreement.
The parties' agreed motion requests relief that is not allowed by the appellate rules. See TEX. R. APP. P. 42.1(a)(1) (allowing the court to "dismiss the appeal or affirm the appealed judgment or order unless such disposition would prevent a party from seeking relief to which it would otherwise be entitled"); id. R. 42.1(a)(2) (allowing the court to render judgment effectuating an agreement, set aside the judgment without regard to the merits and remand, or abate the appeal and permit proceedings in the trial court to effectuate the agreement). Here, the parties' requests that we dismiss the appeal and render judgment are mutually exclusive. Compare id. R. 42.1(a)(1) (allowing the dismissal of an appeal by motion), with id. R. 42.1(a)(2)(A) (allowing the rendition of judgment by agreement); see In re Marriage of McQueen, 597 S.W.3d 53, 54 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (order). Upon reviewing the agreed motion to dismiss, however, it appears that the parties to this appeal are specifically requesting that we dismiss the appeal, which, as requested, would not affect the final judgment rendered by the trial court.
The Court, having examined and fully considered the agreed motion to dismiss, is of the opinion that it should be granted as construed. See TEX. R. APP. P. 42.1(a)(1). Accordingly, we grant the agreed motion to dismiss and we dismiss the appeal. Pursuant to the agreement of the parties, costs will be taxed against the party incurring the same. See id. R. 42.1(d) ("Absent agreement of the parties, the court will tax costs against the appellant."). Having dismissed the appeal at the parties' request, no motion for rehearing will be entertained, and our mandate will issue forthwith.
JAIME TIJERINA
Justice Delivered and filed on the 11th day of March, 2021.