Rain and Hail, LLC v. Vicki Milloy and Dewayne Dunn ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00381-CV
RAIN AND HAIL, LLC, APPELLANT
V.
VICKI MILLOY AND DEWAYNE DUNN, APPELLEES
On Appeal from the 287th District Court
Parmer County, Texas
Trial Court No. 11697, Honorable Kathryn H. Gurley, Presiding
December 4, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, Rain and Hail, LLC, appeals from the trial court’s interlocutory Order on
Plaintiff’s Motion to Dismiss Counterclaim. Now pending before this Court is an “Agreed
Motion to Dismiss with Prejudice” filed by Rain and Hail and Appellees, Vicki Milloy and
Dwayne Dunn. According to the motion, the parties have settled the underlying action
and request that the Court (1) dismiss the appeal and (2) render a judgment “dismissing
any and all claims and causes of action asserted by, or which could have been asserted
by, [the parties] with prejudice to the rights of the parties to re-file same . . . .” We construe
the latter request for relief as a motion to dismiss the underlying case with prejudice.
Rule of Appellate Procedure 42.1 permits us to dismiss an appeal at the appellant’s
request or, in accordance with the agreement of the parties, to render judgment
effectuating the parties’ agreement, remand the case to the trial court for rendition of
judgment in accordance with the agreement, or abate the appeal and permit proceedings
in the trial court to effectuate the agreement. The trial court has not issued a final
judgment in this case. Thus, the parties’ request for dismissal of the underlying case
requests relief beyond the scope of our appellate review of an interlocutory order. For
this reason, rather than dismiss the appeal or render judgment, we remand the cause to
the trial court for rendition of a judgment in accordance with the parties’ agreement. See
TEX. R. APP. P. 42.1(2)(B); Herndon v. Trojan Tubular Servs., No. 12-19-00193-CV, 2019
Tex. App. LEXIS 8703, at *2 (Tex. App.—Tyler Sep. 27, 2019, no pet.) (doing same).
Per Curiam
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