Javier Alvarado v. Lexington Insurance Company ( 2012 )

Opinion issued December 13, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00740-CV
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JAVIER ALVARADO, Appellant
V.
LEXINGTON INSURANCE COMPANY, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2009-36711A
SUPPLEMENTAL MEMORANDUM OPINION
The parties have filed a joint motion stating that they have reached a
settlement agreement and requesting that we withdraw our opinion dated October
18, 2012, vacate our judgment dated October 18, 2012, and dismiss the appeal.
We grant the motion in part and deny the motion in part. See TEX. R. APP. P.
42.1(a)(2) (providing that appellate court may dispose of appeal in accordance with
agreement signed by parties or their attorneys); TEX. R. APP. P. 42.1(c) (“In
dismissing a proceeding, the appellate court will determine whether to withdraw
any opinion it has already issued. An agreement or motion for dismissal cannot be
conditioned on withdrawal of the opinion.”).
The Texas Supreme Court has made the policy concerns with withdrawing
opinions after settlement clear:
A settlement does not automatically require the vacating of a court of
appeals’ opinion—either by this court or by the intermediate appellate
court. Our courts are endowed with a public purpose—they do not sit
merely as private tribunals to resolve private disputes. While
settlement is to be encouraged, a private agreement between litigants
should not operate to vacate a court’s writing on matters of public
importance.
Houston Cable TV, Inc. v. Inwood W. Civic Ass’n, 860 S.W.2d 72, 73 (Tex. 1993)
(per curiam); Vida v. El Paso Emps. Fed. Credit Union, 885 S.W.2d 177, 182
(Tex. App.—El Paso 1994, no writ) (on rehearing) (“Although this Court certainly
encourages the settlement of controversies, we remind the parties that we do not sit
as a purely private tribunal to settle private disputes. We believe that our opinion
in this case involves matters of public importance, and our duty as an appellate
court requires that we publish our decision.”).
The opinion in this case addresses the important issue of the determination
of the third-party beneficiary status of a homeowner whose mortgage company has
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obtained a force-placed insurance policy regarding the mortgaged property.
Without a statement from the settling parties as to why withdrawing the opinions
serves the public interest, we decline to withdraw the October 18, 2012 majority
opinion and the April 19, 2012 dissenting opinion.
However, to facilitate the parties’ settlement agreement, we grant the motion
to vacate our October 18, 2012 judgment, and we dismiss the appeal. See Houston
Cable TV, 860 S.W.2d at 73; Piro v. Sarofim, 80 S.W.3d 717, 721 (Tex. App.—
Houston [1st Dist.] 2002, no pet.); Polley v. Odom, 963 S.W.2d 917, 918 (Tex.
App.—Waco 1998, order) (per curiam).
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
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