NUMBER 13-19-00499-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ANDREW CONTRERAS AND
MARTHA ANN CONTRERAS, Appellants,
v.
DREAM HOME RENOVATORS, LLC, Appellee.
On appeal from the County Court at Law No. 10
of Bexar County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Benavides
Appellants Andrew Contreras and Martha Ann Contreras appealed a final
judgment rendered against them in trial court cause number 2019CV06354 in the County
Court at Law No. 10 of Bexar County, Texas. 1 Appellants have now filed an opposed
motion to dismiss their appeal. According to their motion, appellants “no longer wish to
pursue this appeal” and they request that we dismiss it pursuant to Texas Rule of
Appellate Procedure 42.1(a)(1). See TEX. R. APP. P. 42.1(a)(1). Appellants assert,
however, that appellee, Dream Home Renovators, LLC (Dream Home), opposes their
motion to dismiss and will only agree to a dismissal if this Court awards Dream Home
fees and costs as outlined in the final judgment for an “unsuccessful” appeal. In this
regard, the final judgment awards Dream Home damages for lost rentals, attorney’s fees,
and, in relevant part, also awards:
[A]n additional $15,000 in attorney’s fees if [appellants] file an appeal in the
court of appeals that is ultimately unsuccessful, an additional $15,000 in
attorney’s fees if [appellants] file a petition for review in the Supreme Court
of Texas that is ultimately denied, and an additional $15,000 in attorney’s
fees if [appellants’] petition for review in the Supreme Court of Texas is
granted but relief is not ultimately granted . . . .
(Emphasis added). Appellants assert that they have filed their motion to dismiss the
appeal prior to any briefing in this matter and that they do not seek a ruling from the Court
on the merits of the appeal or whether the appeal would have been successful.
Under Texas Rule of Appellate Procedure 42.1(a)(1), an appellate court may
dismiss an appeal in accordance with an appellant’s motion to dismiss the appeal “unless
such disposition would prevent a party from seeking relief to which it would otherwise be
entitled.” See id. Dream Home did not file a notice of appeal in this case. See id. R. 25.1(c)
(providing that “[a] party who seeks to alter the trial court’s judgment or other appealable
1 This appeal was transferred to this Court by order of the Texas Supreme Court. See TEX. GOV’T
CODE ANN. See TEX. GOV’T CODE ANN. § 73.001 (“The supreme court may order cases transferred from one
court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the
transfer.”).
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order must file a notice of appeal” and the “appellate court may not grant a party who
does not file a notice of appeal more favorable relief than did the trial court except for just
cause”). Accordingly, if the appeal is dismissed, Dream Home will not be prevented from
seeking any appellate relief to which it would otherwise be entitled. See id.; Clear Lake
City Water Auth. v. Friendswood Dev. Co., Ltd., 344 S.W.3d 514, 525 n.15 (Tex. App.—
Houston [14th Dist.] 2011, pet. denied); see also In re Estate of Brown, No. 12-18-00269-
CV, 2018 WL 6715876, at *2 (Tex. App.—Tyler Dec. 21, 2018, no pet.) (mem. op. per
curiam); Continental Intermodal Grp.-S. Tex., L.L.C. v. Garcia, No. 05-16-01102-CV,
2017 WL 1230592, at *1 (Tex. App.—Dallas Apr. 4, 2017, no pet.) (mem. op.). Dream
Home did not file a response to the appellants’ motion to dismiss and has not provided
this Court with argument or authority supporting its position that dismissing the appeal
would prevent it from seeking relief to which it would otherwise be entitled. See TEX. R.
APP. P. 42.1(a)(1).
The Court, having examined and fully considered appellants’ opposed motion to
dismiss, is of the opinion that the appeal should be dismissed. See TEX. R. APP. P.
42.1(a)(1). Accordingly, we reinstate this appeal, grant the appellants’ opposed motion to
dismiss, and dismiss the appeal. Given that the appeal is being dismissed without regard
to the merits, we express no opinion regarding the proper construction of what constitutes
an “unsuccessful” appeal as referenced in the final judgment. Costs will be taxed against
appellants. See id. R. 42.1(d) (“Absent agreement of the parties, the court will tax costs
against the appellant.”); see also Cameron County v. Tompkins, No. 13-16-00279-CV,
2017 WL 4684140, at *1 (Tex. App.—Corpus Christi–Edinburg Oct. 19, 2017, no pet.)
(mem. op. per curiam).
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GINA M. BENAVIDES
Justice
Delivered and filed the
19th day of November, 2020.
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