Opinion
No. 08-10-00261-CV
04-11-2012
NOWAK CONSTRUCTION CO. INC., Appellant, v. OSCAR AVALOS, Appellee.
Appeal from the
327th Judicial District Court
of El Paso County, Texas
(TC# 2008-1103)
MEMORANDUM OPINION
Pending before the Court is the joint motion of Nowak Construction Co., Inc., Appellant, and Oscar Avalos, Appellee. They request that the Court: (1) withdraw the Court's opinion and judgment dated February 15, 2012; (2) reverse the judgment of the trial court without reaching the merits of the case; and (3) remand the cause to the trial court to effectuate the settlement of the parties, pursuant to TEX.R.APP.P. 42.1(a)(2).
Texas Rule of Appellate Procedure 42.1(a) permits an appellate court to dispose of an appeal in accordance with an agreement signed by the parties or their attorneys and filed with the clerk. See TEX.R.APP.P. 42.1(a). The appellate court maintains jurisdiction to determine whether to withdraw any opinion it has already issued. See TEX.R.APP.P. 42.1(c); compare Polley v. Odom, 963 S.W.2d 917, 918 (Tex.App.--Waco 1998, no pet.)(per curiam)(holding that court's duty constrained it to publish prior opinion); Lee v. Lee, 2009 WL 541048, *1 (Tex.App.--El Paso Mar. 4, 2009, no pet.)(memo. op.)(withdrawing opinion pursuant to settlement agreement). Pursuant to Texas Rule of Appellate Procedure 43.2, the Court of Appeals may "reverse the trial court's judgment and remand the case for further proceedings." TEX.R.APP.P. 43.2(d).
The joint motion is GRANTED. This Court's opinion issued February 15, 2012 is withdrawn and our judgment of that date is vacated. See TEX.R.APP.P. 42.1(a)(c). Without reaching the merits of the appeal, we hereby REVERSE the judgment of the trial court and REMAND the matter for further proceedings as necessary to effectuate the parties' agreement. As the motion does not indicate the parties have agreed otherwise, costs of appeal will be paid by the Appellant. See TEX.R.APP.P. 42.1(d).
CHRISTOPHER ANTCLIFF, Justice Before McClure, C.J., Rivera, and Antcliff, JJ.