Denise Underwood, Individually and as Next Friend of Loyd Jay Underwood, Non Compos Mentis, and Haley June Underwood, a Minor v. City of Waco, Texas, and Texas Department of Transportation, formerly known as the Texas State Department of Highways and Public Transportation--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-059-CV

DENISE UNDERWOOD, INDIVIDUALLY AND AS

NEXT FRIEND OF LOYD JAY UNDERWOOD,

NON COMPOS MENTIS, AND HALEY JUNE

UNDERWOOD, A MINOR,

Appellants

v.

CITY OF WACO, TEXAS, AND TEXAS

DEPARTMENT OF TRANSPORTATION,

FORMERLY KNOWN AS STATE DEPARTMENT OF

HIGHWAYS AND PUBLIC TRANSPORTATION,

Appellees

From the 19th District Court

McLennan County, Texas

Trial Court # 94-2973-1

MEMORANDUM OPINION

On December 9, 1996, appellants and the Texas Department of Transportation (TDOT) filed a joint motion to dismiss their appeal. In relevant part, Texas Rule of Appellate Procedure 59(a) provides:

(1) The appellate court may finally dispose of an appeal or writ of error as follows:

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

(B) On motion of appellant to dismiss the appeal or affirm the judgment appealed from, with notice to all other parties; provided, that no other party shall be prevented from seeking any appellate relief it would otherwise be entitled to.

(2)If no transcript has been filed, the agreement or motion shall be accompanied by certified or sworn copies of the judgment appealed from and of the appeal bond or other document perfecting or attempting to perfect the appeal or writ of error.

Tex. R. App. P. 59(a).

In the motion, appellants and TDOT state that they have reached a settlement agreement. The motion is signed by both appellants' attorney and by TDOT's attorney.

The City of Waco, however, did not join this motion. Nevertheless, appellants in the joint motion to dismiss indicate that they have settled their case with the City of Waco and that they no longer wish to pursue their appeal against it. Moreover, the City of Waco has filed nothing in this court to indicate that they are seeking any relief on appeal from appellants. Indeed, the attorney for the City of Waco on October 11 filed a letter signed by him on October 10 stating that all claims against the city had been settled and that the parties wished the appeal to be dismissed.

The motion to dismiss is granted. This cause is dismissed in toto with each party to bear its own costs.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed

Order issued and filed December 18, 1996

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