In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00230-CV
DIMOCK OPERATING COMPANY AND JOE W. DIMOCK
D/B/A DIMOCK PETROLEUM, APPELLANTS
V.
SUTHERLAND ENERGY CO., LLC, APPELLEE
On Appeal from the 46th District Court
Hardeman County, Texas
Trial Court No. 11098, Honorable Dan Mike Bird, Presiding
October 22, 2018
ORDER SUSPENDING ENFORCEMENT OF JUDGMENT
AND DISMISSING APPEAL
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Pending before the Court is the parties’ joint motion to dismiss the appeal. We
issued an opinion and judgment in this case on March 13, 2018, but withdrew them and
substituted our opinion and judgment on rehearing on April 24, 2018. A petition for review
was denied by the Texas Supreme Court on August 31, 2018. We have not yet issued a
mandate to enforce the April 24 judgment. See TEX. R. APP. P. 18.1(a)(2).
By letter of September 13, 2018, we directed the parties to show whether we have
jurisdiction to grant their motion to dismiss. Appellants, Dimock Operating Company and
Joe W. Dimmock d/b/a Dimock Petroleum, filed a response asserting that the Supreme
Court ceased to have jurisdiction over the appeal on September 18, 2018, fifteen days
after the petition for review was denied. See TEX. R. APP. P. 64.1, 64.5, 4.1(a). In their
response, appellants request that we do not issue a mandate to enforce the April 24
judgment or, in the alternative, that we suspend enforcement of the April 24 judgment.
According to appellants, the parties have entered into a settlement agreement and
remanding this cause to the trial court for further proceedings pursuant to the April 24
judgment would directly conflict with that agreement. Finally, appellants request that we
withdraw our March 13 and April 24 opinions in dismissing the appeal. Appellee,
Sutherland Energy Co., LLC, did not respond to our letter.
This Court’s plenary power expired on June 25, 2018, sixty days after the April 24
judgment. See TEX. R. APP. P. 19.1(a), 4.1(a). Because our plenary power has expired,
we cannot vacate or modify the judgment. See TEX. R. APP. P. 19.3. We may, however,
suspend its enforcement. See TEX. R. APP. P. 19.3(c). Therefore, to facilitate the parties’
settlement agreement, we grant appellants’ request and suspend enforcement of our April
24 judgment.
For this reason, we will also grant the parties’ motion to dismiss the appeal. In
dismissing the appeal, we must determine whether to withdraw any opinion previously
issued. See TEX. R. APP. P. 42.1(c). A settlement by the parties does not automatically
require that we vacate our opinion. Houston Cable TV, Inc. v. Inwood W. Civic Ass’n,
860 S.W.2d 72, 73 (Tex. 1993) (per curiam). Because courts are endowed with a public
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purpose, a private agreement between litigants should not operate to vacate a court’s
writing on matters of public importance. Id. As our April 24 opinion addresses issues of
public importance, we deny appellants’ request to withdraw the opinion. Our March 13
opinion was previously withdrawn.
Accordingly, we permanently suspend enforcement of the April 24 judgment to
facilitate the parties’ settlement agreement and grant the parties’ motion to dismiss the
appeal. TEX. R. APP. P. 19.3(c), 42.1(a). The appeal is dismissed. No motion for
rehearing will be entertained and our mandate will issue forthwith. Pursuant to the motion
to dismiss, all costs on appeal are assessed against the party incurring them. TEX. R.
APP. P. 42.1(d).
Judy C. Parker
Justice
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