Farwest Insurance Company, and Mike Armstrong v. The State of Texas--Appeal from County Court at Law No 3 of Collin County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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FARWEST INSURANCE COMPANY, ) No. 08-04-00158-CV

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Appellant, ) Appeal from

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v. ) County Court at Law No. 3

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THE STATE OF TEXAS, ) of Collin County, Texas

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Appellee. ) (TC# 003-25253-03)

MEMORANDUM OPINION

Pending before the Court is a joint motion to vacate the trial court s judgment and dismiss the appeal. By their motion, the parties have agreed that: (1) the underlying judgment will be vacated, (2) all taxable costs in the trial court will be assessed against Appellant, (3) the clerk of the trial court shall deduct all taxable costs from the supersedeas bond posted by Appellant and will refund the balance of the supersedeas bond, if any, to Appellant, (4) the appeal will be dismissed, and (5) the mandate will issue within ten days after the appeal is dismissed.

An intermediate court of appeals is authorized to vacate the trial court s judgment and dismiss the underlying case. See Tex.R.App.P. 43.2(e)(in its judgment, the court of appeals may vacate the trial court s judgment and dismiss the case). Further, Rule 42.1 of the Texas Rules of Appellate Procedure permits an appellate court to dispose of an appeal pursuant to an agreement of the parties. Tex.R.App.P. 42.1(a)(2). The Court may render judgment effectuating the parties agreement, set aside (vacate) the trial court s judgment and remand the case to the trial court for rendition of judgment in accordance with the agreement, or abate the appeal and permit proceedings in the trial court to effectuate the agreement. Tex.R.App.P. 42.1(a)(2).

The parties have clearly agreed that the Court should vacate the trial court s judgment and, in our judgment, assess costs in accordance with the parties agreement. The parties, however, have also agreed that the appeal should be dismissed. // While we are authorized to vacate the trial court s judgment and dismiss the underlying case, we are unable to both vacate the trial court s judgment and dismiss the appeal. It is not clear whether the parties intended for the Court to dismiss the underlying case. Therefore, we will enter a judgment in accordance with the agreement of the parties, except we will not dismiss the appeal. Instead, we will remand the cause to the trial court for further proceedings, including entry of an order dismissing the underlying case.

Accordingly, the joint motion to dispose of the appeal in accordance with the agreement of the parties is granted in part and denied in part. The judgment of the trial court is vacated. All costs in the trial court are taxed against Appellant. The clerk of the trial court shall deduct all taxable costs from the supersedeas bond posted by Appellant and shall refund the balance of the supersedeas bond, if any, to Appellant. Because the parties agreement does not address costs on appeal, those costs are also taxed against Appellant. Tex.R.App.P. 42.1(d)(absent agreement of the parties, the court will costs against the appellant). The cause is remanded to the trial court for entry of a dismissal order or other proceedings as are deemed necessary by the parties and the trial court. Our mandate will issue ten days from the date of this opinion and judgment.

August 5, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.