Concurrence on Order filed March 26, 2020.




                                        In the

                     Fourteenth Court of Appeals

                              NO. 14-20-00090-CV


 IN THE MATTER OF THE MARRIAGE OF ERIC STEVEN MCQUEEN
                 AND VANICHA MCQUEEN

                    On Appeal from the 247th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-32970


                         CONCURRENCE ON ORDER

      Rules should be fair. Rules should make sense. A court applying rules
should be predictable and forthright.

      Lack of subject-matter jurisdiction is fundamental error. An appellate court
cannot change a trial-court judgment that is not before the appellate court on
appeal.

      All these notions about rules and jurisdiction are present in this appeal. This
court should address them. It does not.

      The parties have filed a joint motion to dismiss after reaching “an agreement
to compromise and settle their differences.” The Texas Rule of Appellate
Procedure the parties cite is “Rule 42.1 Voluntary Dismissal in Civil Cases.” They
have asked this court to render judgment “effectuating the parties’ agreement,”
which Rule 42.1(a)(2)(A) generally allows.

      The court denies the motion, which it should. But the court’s order denies
the motion for the following reason:

      We cannot grant the parties’ request to dismiss the appeal because it is
      not clear that they seek dismissal as opposed to disposition under Rule
      42.1(a)(2) based on a settlement. We cannot grant the joint motion
      under Rule 42.1(a)(2) because the parties have not requested one of
      the three options available under this subsection.

In doing so, the court blames the parties and hypertechnically parses their motion
to see if it contains magic words purportedly required by Rule 42.1(a)(2). Although
the parties use the word “dismiss,” the court somehow concludes that the problem
is that the parties have not invoked the proper terminology to seek relief available
under “Rule 42. Dismissal” and “Rule 42.1. Voluntary Dismissal in Civil Cases.”

      While the court’s rationale for denying the motion leaves something to be
desired, there is an unspoken, meritorious reason to deny the motion. The parties’
settlement agreement seeks to “negate” a separate, appealable final enforcement
order that is not a part of this appeal. This court has no subject-matter jurisdiction
over that separate final order, and rendering the judgment the parties request in
their motion would be fundamental error if this court were to do so.

      A motion to dismiss an appeal may seem like a minor thing on the court’s
“to-do list.” But this case is important to the parties. They deserve a full
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explanation that makes sense. I concur that the motion must be denied, but I do not
agree with the majority’s explanation that the reason is the parties failed to use
magic words. Why send them away to return another day without explaining that
the real problem is that they requested rendition of a judgment we have no power
to grant?

       Accordingly, I concur in denying the motion to dismiss without prejudice,
but I do not join the rationale of the order.

       This is an appeal filed by Eric Steven McQueen from a final order signed
November 4, 2019 granting Vanicha McQueen’s motion for enforcement of the
April 5, 2012 divorce decree regarding medical support for children. No clerk’s
record has been filed; this court only has a noncertified copy of the order that is
attached to the notice of appeal. The order renders judgment against Eric Steven
McQueen and in favor of Vanicha McQueen for $8,959.10 as of September 16,
2019.1

       On February 13, 2020, before the clerk’s record and appellate briefs were
filed, the parties filed a joint motion to dismiss the appeal. See Tex. R. App. P.
42.1. The motion recites the signed agreement as required by Texas Rule of

       1
          The Family Code provides that the Texas Rules of Civil Procedure apply to such orders.
Tex. Fam. Code Ann. § 9.006(a). Each final order issued in a proceeding with enforcement of a
divorce decree is a final, appealable judgment. Starr v. Starr, 690 S.W.2d 86, 87–88 (Tex.
App.—Dallas 1985, no writ) (per curiam) (construing (1) former Family Code sections 3.70 to
3.72, Act of May 30, 1983, 68th Leg., R.S., ch. 424, § 2, secs. 3.70–.72, 1983 Tex. Gen. Laws
2346, 2350–52, repealed by Act of Apr. 3, 1997, 75th Leg., R.S., ch. 7, § 3, 1997 Tex. Gen.
Laws 8, 43 (currently Tex. Fam. Code Ann. §§ 9.001–.008) and (2) former Revised Statutes
article 2249, Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 55, 1981 Tex. Gen. Laws 761, 785,
repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322
(currently Tex. Civ. Prac. & Rem. Code Ann. § 51.012) (general grant of appellate review in
civil cases)).

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Appellate Procedure 42.1(a)(2):

       The parties agree to negate the enforcement orders signed by the trial
       court on November 4, 2019, including releasing each party from the
       judgments set forth in each enforcement order. Eric Steven McQueen
       shall be released from the Judgment of $8,959.10 and Vanicha
       McQueen shall be release [sic] from the Judgment of $1,750.00.2
Problematically, in addition to requesting alteration of the appealed final
enforcement order against Eric Steven McQueen, the agreement appears to request
an alteration of an apparent separate final enforcement order against Vanicha
McQueen. There is no appeal of that separate final enforcement order pending in
this court.

       The parties’ joint motion to dismiss the appeal nonetheless asks this court
“to set aside the trial court’s judgment and render a judgment effectuating the
parties’ agreement.” Rule 42.1(a)(2)(A) allows this court, in “accordance with an
agreement signed by the parties or their attorneys and filed with the clerk,” 3 to
“render judgment effectuating the parties’ agreement.” Tex. R. App. P.
42.1(a)(2)(A).4 While the parties added the surplusage of “set aside the trial court’s

       2
          In an ideal world, the agreement submitted to the court would track the language of the
judgment the parties wish the court to render, i.e., “We agree to have the court render judgment
as follows . . . .” In any event, the necessary elements of the judgment must be in the agreement,
so that the court is not left guessing as to how to proceed “in accordance with the agreement.”
       3
         Rule 42.1(a)(2) requires the agreement to be signed by the parties and be filed with the
clerk, meaning the appellate clerk. An appellate court cannot review an agreement that is not
filed with the clerk and should not grant a voluntary motion to dismiss by agreement when the
agreement is not on file.
       4
          Rule 42.1(a)(2) allows this court, in “accordance with an agreement signed by the
parties or their attorneys and filed with the clerk,” to (A) render judgment effectuating the parties
agreement, (B) set aside the trial court’s judgment without regard to the merits and remand the
case to the trial court for rendition of judgment in accordance with the agreement, or (C) abate
the appeal and permit proceedings in the trial court to effectuate the agreement. Either way, the
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judgment” in their motion, they have substantively asked for relief under Rule
42.1(a)(2)(A). Were this court to “render judgment effectuating the parties’
agreement,” it would effectively set aside the trial court’s post-divorce decree final
enforcement order against Eric Steven McQueen.5

       The parties do not cite any authority that would allow this court to use Texas
Rule of Appellate Procedure 42.1 to affect a separate final enforcement order that
the trial court may have signed against Vanicha McQueen and in favor of Eric
Steven McQueen for $1,750.00 from which Vanicha McQueen appears to have not
filed a notice of appeal. See Tex. R. App. P. 25.1, 26.1. The parties’ agreement
plainly reflects their desire to “negate” not only the final enforcement order
appealed by Eric Steven McQueen, but also the apparent final enforcement order
against Vanicha McQueen over which this court has no jurisdiction.6 Texas Rule of
Appellate Procedure 42.1(a)(2) only allows this court to change a final judgment
“[i]n accordance with an agreement signed by the parties or their attorneys and
filed with the clerk.”


rule requires it be done “in accordance with the agreement.” Under Rule 42.1(a)(2)(A) or (B), the
appellate court must review the agreement and determine whether that agreement is capable of
being rendered into a legally permissible judgment. Rendition of a proper judgment is not a
responsibility that a court can delegate to the parties. See generally Tex. R. Civ. P. 300, 301.
       5
          Moreover, the fact that the parties request that the appeal be “dismissed” should not be
controlling. None of the three options under Rule 42.1(a)(2) is actually a simple “dismissal” of
the appeal; instead Rule 42.1(a) states “[t]he appellate court may dispose of an appeal as
follows,” with the three options under Rule 42.1(a)(2) “By Agreement” accompanying Rule
42.1(a)(1) “On Motion of Appellant.” I do not believe that the proper disposition turns on the use
of the word “dismiss” as opposed to the word “dispose.” If the court wishes to be hypertechnical,
it should criticize the text of Rule 42, not the parties’ motion.
       6
         This court does not know if the trial court continues to have plenary power over the
apparent final enforcement order against Vanicha McQueen.

                                                5
       No one at this court is opposed to parties settling an appeal. There is a way
to resolve the parties’ dispute within the rules, and it should go without saying that
this court should follow the Texas Rules of Appellate Procedure.7 Because little
guidance exists in caselaw concerning Rule 42.1(a)(2), the parties should not be
faulted for their motion. But the court does not inform the parties about the central
problem with their motion, thereby denying the parties useful guidance if they file
another motion to dismiss.

       In general, this court appropriately focuses its energy on writing opinions
that address every issue raised and necessary to a final disposition of those appeals.
Tex. R. App. P. 27.1. But the court also must render proper judgments. After all is
said and done, the opinion is an explanation of the court’s judgment, not vice
versa. And like a well-drafted contract, a proper appellate judgment should stand
alone. The agreement that forms the basis of this agreed dismissal is insufficient
for this court to render a proper judgment,8 and the court correctly denies the
motion without prejudice so that the parties may file, if they chose to proceed
under Rule 42.1(a)(2)(A) or 42.1(a)(2)(B), a subsequent motion with an agreement
they draft on which either this court or the trial court can render judgment,
effectively “dismissing” the appeal. The parties may also file a motion under Rule

       7
          If the court determines that it is necessary to expedite a decision or for other good cause,
the court may suspend a rule’s operation in a particular case and order a different procedure. Tex.
R. App. P. 2. Rule 2, however, does not allow this court to alter the time for perfecting an appeal
in a civil case. In addition, even if there is a final enforcement order against Vanicha McQueen
that is no longer appealable, the parties could make the release of that judgment part of any
future settlement.
       8
         As the court points out, the parties’ agreement does not address taxation of costs, even
though the motion recites, “All costs on appeal should be taxed in accordance with the parties’
agreement.” Were there no other reason to deny the motion, I would invoke the default provision
of Rule 42.1(d) and tax costs against the appellant. Tex. R. App. P. 42.1(d).

                                                  6
42.1(a)(2)(C), or Eric Steven McQueen may file a motion under Rule 42.1(a)(1).
Regardless, the court should be up front with the parties and explain why their
motion does not allow this court to grant the judgment they seek.

      Rules matter. Process matters. Transparency matters. Believing that the
parties deserve better, I concur in denying the motion to dismiss without prejudice,
but I do not join the rationale of the court’s order.




                                         /s/       Charles A. Spain
                                                   Justice

Panel consists of Chief Justice Frost and Justices Jewell and Spain (Frost, C.J,
Majority).




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