Opinion
No. 08-06-00086-CV
February 21, 2008.
Appeal from 327th District Court of El Paso County, Texas (TC # 2004-515).
Before CHEW, C.J., McCLURE, and CARR, JJ.
CHEW, C.J., not participating.
MEMORANDUM OPINION
Pending before the Court is an agreed motion to set aside the trial court's judgment and remand the case for dismissal with prejudice. By their motion, the parties represent that the underlying dispute has been resolved and request that: (1) the trial court's judgment be set aside without regard to the merits; (2) the case be remanded for dismissal with prejudice; and (3) an order issue directing the trial court to release supersedeas bond #285021619.
An intermediate court of appeals is authorized to vacate the trial court's judgment and dismiss the underlying case. See Tex.R.App.P. 43.2(e) (in its judgment the court of appeals may vacate the trial court's judgment and dismiss the case). Further, Rule 42.1 of the Texas Rules of Appellate Procedure permits an appellate court to dispose of an appeal pursuant to an agreement of the parties. Tex.R.App.P. 42.1(a)(2). The Court may render judgment effectuating the parties' agreement, set aside (vacate) the trial court's judgment and remand the case to the trial court for rendition of judgment in accordance with the agreement, or abate the appeal and permit proceedings in the trial court to effectuate the agreement. Tex.R.App.P. 42.1(a)(2).
The parties have clearly agreed that the Court should vacate the trial court's judgment, and in our judgment assess costs in accordance with the parties' agreement. The parties, however, have also agreed the appeal should be dismissed. While we are authorized to vacate the trial court's judgment and dismiss the underlying case, we are unable to both vacate the trial court's judgment and dismiss the appeal. Therefore, we will enter a judgment in accordance with the agreement of the parties, except we will not dismiss the appeal. Instead, we will remand the cause to the trial court for further proceedings, including entry of an order dismissing the underlying case with prejudice.
Accordingly, the agreed motion to dispose of the appeal in accordance with the parties' agreement is granted in part and denied in part. The judgment of the trial court is vacated. The clerk of the trial court shall release bond #285021619. In accordance with the parties' agreement costs of the appeal are taxed against the party incurring the same. Tex.R.App.P. 42.1(d). The cause is remanded to the trial court for entry of a dismissal order with prejudice of all claims.