Opinion
No. 04-05-00770-CV
Delivered and Filed: November 1, 2006.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court Nos. 2002-CI-10424, 2005-CI-07988, and 2005-CI-08044, Honorable Michael P. Peden, Judge Presiding.
Motion for Rehearing Granted; Motion to Dismiss Granted; Dismissed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
On September 15, 2006, all parties to this appeal filed a "Joint Motion to Dismiss Appeal," asking "that this appeal . . . be dismissed . . . and the cause remanded to the trial court for entry of a judgment in accordance with the parties' settlement agreement." Noting that we are not authorized to dismiss an appeal and remand the cause for further proceedings, see Tex.R.App.P. 42.1 (a)(2), 43.2, we construed the motion as requesting that we set aside the trial court's judgments without regard to the merits and remand the causes to the trial court for rendition of judgment in accordance with the parties' settlement agreement. On September 27, 2006, we issued our opinion and judgment granting the motion, setting aside the trial court's judgments without regard to the merits, and remanding the causes to the trial court.
On October 11, 2006, appellees Kathleen Smith, Jeff Baker, and Evelyn M. Smith filed a motion for rehearing and modification of the judgment, explaining that the parties did not agree to set aside the trial court's judgments and that no further action by the trial court is necessary, and asking that our September 27, 2006 opinion and judgment be withdrawn and a new opinion dismissing the appeal be issued. The certificate of conference recites that appellant Carole O. Kotz does not oppose the motion, but that counsel has been unable to determine whether the remaining parties oppose the motion. The motion contains a certificate showing service of the motion on the remaining parties. No objection to the motion for rehearing and modification of the judgment has been filed.
Accordingly, we grant the motion for rehearing and withdraw our opinion and judgment dated September 27, 2006. We grant the joint motion to dismiss, dismiss the appeal, and order the costs of this appeal shall be borne by the party that incurred them.