Opinion
NO. 01-12-00545-CV
07-30-2013
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.