Opinion
No. 10-01-248-CV.
Opinion delivered and filed January 15, 2003.
Appeal from the 405th District Court, Galveston County, Texas, Trial Court # 99CV0884.
Appeal dismissed.
Before Chief Justice Davis, Justice Gray, and Senior Justice Hill (Sitting by Assignment)
MEMORANDUM OPINION
South Shore Harbour Community Association, Inc. ("South Shore") filed suit against John Kosty and his wife Elaine alleging that (1) the construction of a children's play structure on their property without prior approval and (2) the Kostys' placement of garbage cans "in public view" on non-trash pickup days violated deed restrictions which apply to homes in the subdivision. A jury found in South Shore's favor on the "garbage can violation," assessed $2,500 in damages for this violation, and awarded attorney's fees to both parties. The court granted the Kostys' motion for judgment notwithstanding the verdict and rendered judgment: (1) declaring that the play structure does not violate the deed restrictions and permanently enjoining South Shore from initiating any further proceedings with respect to the play structure; (2) declaring that South Shore take nothing by its suit (including the garbage can allegation and attorney's fees); and (3) awarding the Kostys their attorneys fees as found by the jury. South Shore has filed a motion to dismiss its appeal.
Rule of Appellate Procedure 42.1(a)(2) provides:
(a) The appellate court may dispose of an appeal as follows:
(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no other party may be prevented from seeking any relief to which it would otherwise be entitled.
Tex.R.App.P. 42.1(a)(2).
The dismissal motion filed by South Shore complies with the requirements of the appellate rules. The Kostys have agreed to the motion. Accordingly, this appeal is dismissed with costs to be taxed against the party incurring same.