TIG Insurance Company v. Llebroc Industries, Inc. ( 2003 )

NO. 07-03-0115-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 16, 2003
______________________________
TIG INSURANCE COMPANY, APPELLANT
V.
LLEBROC INDUSTRIES, INC., APPELLEE
_________________________________
FROM THE 72N D DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-517,025A; HONORABLE J. BLAIR CHERRY, JR., JUDGE
_______________________________
MEMORANDUM OPINION ON JOINT MOTION
TO REVERSE JUDGM ENT AND REMAND CASE
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
By this restricted appeal pursuant to the provisions of Rule 30 of the Texas Rules of
Appellate Procedure, appellant TIG Insurance Company caused the record to be filed and
timely filed its brief requesting that we reverse the default judgment that appellee Llebroc
Industries, L.L.C. recover $110,160, plus interest and attorney’s fees from and of TIG. Llebroc
has not filed a brief in response; instead, it joins TIG in a motion requesting that we reverse the
default judgment and remand the case to the trial court for a new trial.
By their joint motion, the parties stipulate (1) TIG is a foreign insurer with authority to
transact business in Texas; (2) TIG did not participate in the hearing that resulted in the default
judgment nor otherwise file a post-judgment motion or request for findings of fact and
conclusions of law, but first appeared by filing its notice of appeal; (3) TIG timely filed its
restricted appeal; and (4) the process server did not serve the registered agent or the
Commissioner of Insurance. Citing Commodore Cty. Mut. Ins. Co. v. Tkacik, 802 S.W .2d 913
(Tex.App.--Amarillo 1991), clarified on reh’g, 809 S.W.2d 630 (Tex.App.--Amarillo 1991, writ
denied), the parties agree the default judgment signed November 22, 2002, should be reversed
and the cause remanded based on the stipulated facts and Rule 30.
This Court has the authority to render the relief requested pursuant to Rule 43.2(d) of
the Texas Rules of Appellate Procedure. See also Dunn v. Canadian Oil & Gas Services, Inc.,
908 S.W.2d 323, 324 (Tex.App.--El Paso 1995, no writ). By their motion, the parties implicitly
waive oral argument and agree the default judgment should be reversed and the proceeding
remanded to the trial court. Accordingly, pursuant to the joint motion, the stipulations, and Rule
43.2(d), we reverse the default judgment and remand the cause to the trial court for further
proceedings. See also Tex. R. App. P. 2. Having granted the relief requested by the parties,
no motion for rehearing will be entertained and our mandate will issue forthwith.
Per Curiam
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