Opinion
13-23-00396-CV
12-12-2024
LARRY MENARD, Appellant, v. SHERRY L. CATHEY A/K/A SHERRY L. KUENSTLER AND RICHARD KUENSTLER, Appellees.
ON APPEAL FROM THE 135TH DISTRICT COURT OF GOLIAD COUNTY, TEXAS
Before Chief Justice Contreras and Justices Benavides and Silva
MEMORANDUM OPINION
CLARISSA SILVA JUSTICE
Appellant Larry Menard filed a notice of appeal from the trial court's August 22, 2023 final judgment. Appellees Sherry L. Cathey a/k/a Sherry L. Kuenstler and Richard Kuenstler subsequently filed with this Court a motion to vacate and set aside the judgment entered in their favor.
On November 18, 2024, we ordered the parties to confer on "whether they agree that the trial court's judgment should be set aside without regard to the merits and the case remanded to the trial court for rendition of judgment" and to advise the Court within ten days whether such an agreement was reached. See Tex. R. App. P. 42.1(a)(2)(B). On December 2, 2024, appellant filed an "Agreed Motion to Set Aside Judgment of the Lower Court," approved as to form and substance and signed by all parties' counsel. In the motion, the parties advise that they have reached an agreement and request that this Court vacate the trial court's judgment signed on August 22, 2023, without regard to the merits, and that this case be remanded to the trial court for rendition of judgment and any further proceedings deemed necessary. See id.
Texas Rule of Appellate Procedure 42.1(a)(2), governing the voluntary dismissal of civil appeals by agreement, allows an appellate court to:
(A) render judgment effectuating the parties' agreement;
(B) 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 agreement; or
(C) abate the appeal and permit proceedings in the trial court to effectuate the agreement.Id. R. 42.1(a)(2). Accordingly, we grant the "Agreed Motion to Set Aside Judgment of the Lower Court," vacate the August 22, 2023 judgment without regard to the merits, dismiss the appeal, and remand the case to the trial court for rendition of judgment in accordance with the parties' agreement and for any further proceedings deemed necessary. See id.; see also Estate of Steward, No. 13-23-00162-CV, 2023 WL 5486230, at *1 (Tex. App.- Corpus Christi-Edinburg Aug. 24, 2023, no pet.) (mem. op.). Costs are taxed against appellant. See Tex. R. App. P. 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.
All other pending motions in the appeal are dismissed as moot.