Summary
defining the term "complete invoices" for the product of siding "must describe the siding and state the price charged for the siding"
Summary of this case from Deboer v. Attebury Grain, LLCOpinion
14-19-00204-CV
01-04-2022
CCC GROUP, INC., Appellant v. ENDURO COMPOSITES, INC. AND J.P. MACK INDUSTRIES, LLC, Appellees
On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2014-18092
Panel Consists of Justices Jewell, Spain, and Wilson. Justice Spain authored a Concurring Opinion.
ORDER
RANDY WILSON JUSTICE
On August 31, 2021, this court issued a judgment in which the court affirmed in part and reversed and rendered in part the trial court's judgment. This court also issued a Majority Opinion, and Justice Spain authored a Concurring Opinion.
On September 16, 2021, the parties notified this court that they had agreed to mediate the case in an attempt to settle the matters on appeal. We removed the case from this court's active docket to permit the parties to mediate. On December 14, 2021, the parties filed a joint motion to dismiss the appeal because the parties reached a settlement agreement. We grant the motion to dismiss.
We already have issued an opinion in this appeal, and we decline to withdraw the Majority Opinion. See Tex. R. App. P. 42.1(c); see Houston Cable TV, Inc. v. Inwood West Civic Ass'n, 860 S.W.2d 72, 73 (Tex. 1993).
We reinstate the appeal, withdraw our judgment dated August 31, 2021, and in its place, we issue a judgment dismissing the appeal.
CONCURRING OPINION
I concur with granting the joint motion to dismiss the appeal pursuant to the settlement agreement.
I understand that the court does not have to withdraw its opinion that issued before the parties' settlement, and there has been no request that the opinion be withdrawn. That should not come as a surprise, however, because the parties cannot condition a settlement on the withdrawal of the opinion. Tex. R. App. P. 42.1(c); Houston Cable TV, Inc. v. Inwood W. Civic Ass'n, 860 S.W.2d 72, 73 (Tex. 1993) (per curiam) ("A settlement does not automatically require the vacating of a court of appeals' opinion-either by this court or by the intermediate appellate court."). I would not read anything into the absence of a request to withdraw the opinion.
A reasonable question is whether the court should allow an opinion to remain as stare decisis when that opinion can no longer be directly challenged on appeal. In this case the opinion was not unanimous, and I saw no reason to invite publication in the South Western Reporter. The court offers no explanation.
Based on the settlement, I no longer join in the court's analysis as to part II(A) of the opinion. I would withdraw the opinion and continue to disagree with the opinion's status as a non-memorandum opinion.
Charles A. Spain Justice