Bennie C. Hanson v. Theda Spurgeon ( 2001 )

  IN THE

TENTH COURT OF APPEALS

No. 10-99-246-CV

     BENNIE C. HANSON,

                                                                         Appellant

     v.

     THEDA SPURGEON,

                                                                         Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 97-12-11097-HCCV

O P I N I O N

      On June 22, 2001, the parties filed an “agreed motion to modify trial court’s judgment or in the alternative remand due to full settlement and compromise.” The parties state that they have settled their differences, but that a portion of the settlement agreement “contemplates an Agreed Amended Judgment from the trial court in order to (1) divide the property at issue and (2) enter agreed injunctive relief.” The Agreed Amended Judgment, attached to the motion, contemplates that we will reverse the original judgment so that the new agreed judgment may be entered by the trial court.

      Rule 43.2 specifically gives us the authority to reverse the trial court judgment and remand the case for further proceedings. The rule provides as follows:

43.2 Types of Judgment. The court of appeals may:

(a) affirm the trial court's judgment in whole or in part;

(b) modify the trial court's judgment and affirm it as modified;

(c) reverse the trial court's judgment in whole or in part and render the judgment that the trial court should have rendered;

(d) reverse the trial court's judgment and remand the case for further proceedings;

(e) vacate the trial court's judgment and dismiss the case; or

(f) dismiss the appeal.

Tex. R. App. P. 43.2 (emphasis added).

      Pursuant to Rule 42.1(a) we are given the authority to grant the relief agreed to by the parties. This rule provides as follows:

42.1 Voluntary Dismissal in Civil Cases.

(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.

Id. 42.1 (emphasis added). Thus, we dispose of this appeal in accordance with the agreement of the parties. Id. The judgment is reversed and the cause is remanded to the trial court for entry of the Agreed Amended Judgment. Costs are taxed against the party incurring them in accordance with the agreement of the parties.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Reversed and Remanded

Opinion delivered and filed July 25, 2001

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