Swanson Broadcasting, Inc. v. Clear Channel Communications, Inc. , 1988 Tex. App. LEXIS 3344 ( 1988 )

762 S.W.2d 360 (1988)

SWANSON BROADCASTING, INC. & Hugh Barr, Appellants,
v.
CLEAR CHANNEL COMMUNICATIONS, INC., Appellee.

No. 04-88-00102-CV.

Court of Appeals of Texas, San Antonio.

December 21, 1988.

Gale R. Peterson, J. Kevin Parker, Cox & Smith, San Antonio, for appellants.

Judith R. Blakely, Matthews & Branscomb, San Antonio, for appellee.

Before BUTTS, DIAL^[*] and CHAPA, JJ.

ON APPELLANTS' AND APPELLEE'S MOTION TO DISMISS AND VACATE

BUTTS, Justice.

This is an appeal from a temporary injunction enjoining the appellants, Swanson Broadcasting, Inc. and Hugh Barr from performing certain acts as fully described in this court's opinion. Swanson Broadcasting, Inc. & Hugh Barr v. Clear Channel Communications, Inc., 752 S.W.2d 165 (Tex.App.—San Antonio 1988). On May 25, 1988, this Court affirmed the judgment of the trial court. While appeal was pending in the Supreme Court, the parties settled and compromised all matters of controversy between them. Upon joint motion of the parties, the Supreme Court dismissed the application for writ of error as moot. A like joint motion was filed in this Court on November 8, 1988.

On December 8, 1988, this Court improvidently issued its mandate to the trial court. After due consideration, we grant the joint motion now before this Court to dismiss and vacate our judgment based upon the parties settlement and compromise of all matters of controversy between them. See Polunsky v. Polunsky, 152 S.W.2d 932 (Tex.Civ.App.—San Antonio 1941, no writ).

This fact having been timely called to the attention of the Court by the parties, the judgment of affirmance heretofore entered will be vacated and the cause dismissed. Because we now vacate the judgment and dismiss the cause, we also recall the mandate issued on December 8, 1988. TEX.R. APP.P. 86(e). It is ordered that mandate shall have no further effect.

At the joint request of the parties the cause is dismissed with prejudice. It is further ordered that the cost bond filed by appellants on February 19, 1988, be dissolved, and each party will pay its own costs and fees.

NOTES

[*] Associate Justice Preston H. Dial, Jr., not participating.