Opinion issued October 27, 2005
In The
Court of Appeals
For The
First District of Texas
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NO. 01-05-00742-CV
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ALBERT LUI AND IRENE PADILLA, Appellants
V.
INTERNATIONAL BUSINESS MACHINES CORPORATION, ANDREW DAUGHERITY, RICH FITZGERALD, MARIO BONELLI, ANTHONY BOWER, JEFF LEAKS, JEREMY SCHMIT, OLIVER SOELL, CHRISTOPHER WETZLER, INTERNET SERVICES ZOCALO, INC., MICHAEL GRANITO, RYAN LORD, AND ANTHONY WOZNIAK, Appellees
On Appeal from the 21st District Court
Burleson County, Texas
Trial Court Cause No. 23,162
MEMORANDUM OPINION
The parties have filed a joint motion “to dismiss” the appeal and to “remand this case to the trial court” for that court to enter an amended final judgment in accordance with the parties’ settlement agreement. Under the Rules of Appellate Procedure, this Court cannot both dismiss the appeal and remand the cause with instructions for the vacating of the final judgment; rather, the rules allow the following dispositions upon agreement:
42.1.Voluntary Dismissal in Civil Cases
(a)On Motion or By Agreement. The appellate court may dispose of an appeal as follows:
. . .
(2)By Agreement. In accordance with an agreement signed by the parties or their attorneys and filed with the clerk, the court may:
(A)render judgment effectuating the parties’ agreements;
(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 agreements; or
(C)abate the appeal and permit proceedings in the trial court to effectuate the agreement.
. . .
Tex. R. App. P. 42.1(a)(2)(A)-(C) (emphasis added).
Given the content of the parties’ agreed motion, we construe that motion as requesting that we set aside the trial court’s judgment without regard to the merits and that we remand the cause for rendition of judgment in accordance with the parties’ settlement agreement. See Tex. R. App. P. 42.1(a)(2)(B). As so construed, the motion is granted. It is, therefore, ORDERED that the trial court’s judgment be, and the same hereby is, set aside without regard to the merits. It is further ORDERED that the cause be, and the same hereby is, remanded to the trial court for rendition of judgment in accordance with the parties’ settlement agreement.
All other pending motions in this appeal are overruled as moot.
The Clerk is directed to issue mandate within 15 days of the date of this opinion. See Tex. R. App. P. 18.1.
PER CURIAM
Panel consists of Justices Taft, Keyes, and Hanks.