1900 N.L., Inc. v. RCG/Pro-Access, Inc., et al.--Appeal from 113th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-98-164-CV

1900 N.L., INC.,

Appellant

v.

RCG/PRO-ACCESS, INC., ET AL.,

Appellees

From the 113th District Court

Harris County, Texas

Trial Court # 97-26863

MEMORANDUM OPINION

1900 N.L., Inc. sued RCG/Pro-Access, Inc. and RCG Information Technologies, Inc. for anticipatory breach of a commercial lease agreement. After a bench trial, the trial court held defendants had not breached the lease and rendered a take-nothing judgment against 1900 N.L., Inc. In an opinion issued October 13, 1999, we reversed the judgment of the trial court and remanded the cause for a new trial.

The parties have filed a Joint Motion for Dismissal with Prejudice. They ask that we dismiss the cause with prejudice to the rights of each party to refile the same or any part thereof in accordance with a settlement agreement they have reached.

In relevant portion, Rule 42.1 of the Texas Rules of Appellate Procedure provides:

(a) The appellate court may dispose of an appeal as follows:

(1) in accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no party may be prevented from seeking any relief to which it would otherwise be entitled.

Tex. R. App. P. 42.1(a). Rule 43.2 provides in pertinent part that this Court may: (e) vacate the trial court s judgment and dismiss the case; or (f) dismiss the appeal. Id. 43.2(e), (f).

The motion states that the parties have agreed to a settlement of their disputes. The motion is signed by attorneys for both parties. The parties request that we dismiss the cause in accordance with their settlement agreement, and that costs be assessed against the party incurring same.

Dismissal of this case necessarily means a dismissal of this appeal in addition to a dismissal of the underlying proceedings. Accordingly, we vacate the judgment of the trial court and dismiss the case. Id. 43.2(e); see Young Materials Corp. v. Smith, No. 10-99-114-CV, slip op. at 3, 1999 WL 815694, at *1 (Tex. App. Waco Oct. 13, 1999, no pet. h.) (per curiam). Costs are taxed against the party incurring same.

PER CURIAM

Before Chief Justice Davis,

Justice Vance and

Justice Campbell (Sitting by Assignment)

Dismissed

Opinion delivered and filed December 13, 1999

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