Ashley Thomas v. DM Arbor Court

Motion Granted; Order of March 5, 2020 Withdrawn; Vacated and
Remanded and Memorandum Opinion filed March 26, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00048-CV

ASHLEY THOMAS, Appellant

V.

DM ARBOR COURT, Appellee

On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1119150

MEMORANDUM OPINION

This is an appeal from a judgment signed February 20, 2019. On February
21, 2020, Appellant, Ashley Thomas, and Appellee, DM Arbor Court, filed a joint
motion for entry of agreed order, asserting they “agreed to a settlement of this
appeal” pursuant to Texas Rule of Appellate Procedure 42.1(a)(2)(A) and (B). The
parties asked this court to “render judgment effectuating the parties’ agreement that
the trial court’s judgment be set aside and vacated without regard to the merits and
the case be remanded for filing of a notice of nonsuit with prejudice in accordance
with the parties’ agreement.”

However, under the Rules of Appellate Procedure, this Court cannot both
render judgment effectuating the parties’ agreement and remand the case with
instructions to the trial court. See Tex. R. App. P. 42.1(a)(2). Instead, Rule
42.1(a)(2) provides:

(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’ agreement;
(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 agreement; or
(C) abate the appeal and permit proceedings in the trial court to
effectuate the agreement.
Id.

We issued an order granting the parties’ joint motion pursuant to Texas Rule
of Appellate Procedure 42.1(a)(2)(C) and abated the appeal to permit proceedings
in the trial court, i.e. “the filing of a notice of nonsuit with prejudice”, to effectuate
the parties’ agreement. See Tex. R. App. P. 42.1(a)(2)(C). Thomas filed an
unopposed motion for rehearing and entry of agreed order, requesting we “amend”
our March 5, 2020 order. In her motion, Thomas states “[t]he requested
amendment is for this Court to render judgment effectuating the parties’ agreement
that the trial court’s judgment be set aside and vacated without regard to the merits
and the case be remanded for the entry of a judgment in accordance with the
parties’ agreement.” Thomas also states that she “moves for the amended Order to
set aside and vacate the trial court judgment without regard to the merits and

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remand the case to the trial court for rendition of a judgment in accordance with
the settlement agreement.”

Based on the content of the parties’ motions and because this Court cannot
both render judgment effectuating the parties’ agreement and remand the case with
instructions to the trial court, we construe the motions as requesting that we set
aside the trial court’s judgment without regard to the merits and remand the case
for rendition of judgment in accordance with the parties’ agreement. See Tex. R.
App. P. 42.1(a)(2)(B). As so construed, we grant the motion for rehearing and
motion for entry of agreed order, set aside the trial court judgment without regard
to the merits, and remand this cause to the trial court for further proceedings. See
id.

PER CURIAM

Panel consists of Justices Bourliot, Hassan, and Poissant.

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