
Opinion issued October 27, 2005










In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-05-00742-CV
____________

ALBERT LUI AND IRENE PADILLA, Appellants

V.

INTERNATIONAL BUSINESS MACHINES CORPORATION, ANDREW
DAUGHERITY, RICH FITZGERALD, MARIO BONELLI, ANTHONY
BOWER, JEFF LEAKS, JEREMY SCHMIT, OLIVER SOELL,
CHRISTOPHER WETZLER, INTERNET SERVICES ZOCALO, INC.,
MICHAEL GRANITO, RYAN LORD, AND ANTHONY WOZNIAK,
Appellees




On Appeal from the 21st District Court
Burleson County, Texas
Trial Court Cause No. 23,162




MEMORANDUM OPINION
          The parties have filed a joint motion “to dismiss” the appeal and to “remand
this case to the trial court” for that court to enter an amended final judgment in
accordance with the parties’ settlement agreement.  Under the Rules of Appellate
Procedure, this Court cannot both dismiss the appeal and remand the cause with
instructions for the vacating of the final judgment; rather, the rules allow the
following dispositions upon agreement:
42.1.Voluntary Dismissal in Civil Cases
 
                    (a)On Motion or By Agreement.   The appellate court
may dispose of an appeal as follows:
 
. . .
 
(2)By Agreement.  In accordance with an agreement
signed by the parties or their attorneys and filed with the
clerk, the court may:
 
(A)render judgment effectuating the parties’
agreements;
 
(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 agreements; or
 
(C)abate the appeal and permit proceedings in the
trial court to effectuate the agreement.
 
. . .

Tex. R. App. P. 42.1(a)(2)(A)-(C) (emphasis added).  
          Given the content of the parties’ agreed motion, we construe that motion as
requesting that we set aside the trial court’s judgment without regard to the merits and
that we remand the cause for rendition of judgment in accordance with the parties’
settlement agreement.  See Tex. R. App. P. 42.1(a)(2)(B).  As so construed, the motion
is granted.  It is, therefore, ORDERED that the trial court’s judgment be, and the
same hereby is, set aside without regard to the merits.  It is further ORDERED that
the cause be, and the same hereby is, remanded to the trial court for rendition of
judgment in accordance with the parties’ settlement agreement.
          All other pending motions in this appeal are overruled as moot.  
          The Clerk is directed to issue mandate within 15 days of the date of this
opinion.  See Tex. R. App. P. 18.1.
PER CURIAM
Panel consists of Justices Taft, Keyes, and Hanks.
