Opinion
No. 10-03-271-CV
Opinion delivered and filed August 27, 2003
From the 13th District Court, Navarro County, Texas, Trial Court # 98-00-0869-CV.
Appeal severed and dismissed
Before Justice Vance, Justice Gray, and Senior Justice Hill (Sitting by Assignment)
ORDER AND MEMORANDUM OPINION
Merrimac Properties, Inc. filed a wrongful foreclosure suit against John Malone and others involved in a series of transactions among the parties. The court rendered a take-nothing judgment, and Merrimac Properties appealed. We docketed the appeal under cause number 10-02-298-CV.
The parties have filed an agreed motion to dismiss the appeal as to Appellee John Malone, who was the trustee in the deed of trust on which Combined Financial foreclosed. The parties "stipulate that dismissal is proper pursuant to Property Code § 51.007 and that the dismissal of John Malone does not affect the merits of the controversy." Section 51.007(d) provides in pertinent part that a "court shall dismiss the trustee from the suit or proceeding without prejudice if the court determines that the trustee is not a necessary party." Tex. Prop. Code Ann. § 51.007(d) (Vernon 2003).
Rule of Appellate Procedure 42.1 provides in pertinent part:
(a) The appellate court may dispose of an appeal as follows:
(1) On Motion of Appellant. In accordance with a motion of appellant, the court may 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.
. . . .
(b) Partial Disposition. A severable portion of the proceeding may be disposed of under (a) if it will not prejudice the remaining parties.
Tex.R.App.P. 42.1(a)(1), (b).
We hereby order that portion of the appeal which seeks review of the take-nothing judgment rendered in favor of John Malone severed from our cause number 10-02-298-CV and docketed under cause number 10-03-271-CV.
The parties have stipulated that Malone is not a necessary party and that a dismissal will not prejudice the remaining parties. The motion complies with the requirements of the appellate rules. Id. Accordingly, we dismiss the appeal in cause number 10-03-271-CV.