                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 TEXAS CUSTOM POOLS, INC., F/K/A                 §
 RIVERBEND POOLS, INC.,                                          No. 08-07-00197-CV
                                                 §
                   Appellant,                                      Appeal from the
                                                 §
 v.                                                          393rd Judicial District Court
                                                 §
                                                              of Denton County, Texas
 ALLAN CLAYTON and MIRIAM                        §
 CLAYTON,                                                      (TC# 2000-60215-393)
                                                 §
                   Appellees.


                                 MEMORANDUM OPINION

       Pending before the Court is a joint motion to dismiss this appeal in accordance with

TEX .R.APP .P. 42.1(a). The parties represent that they have reached an agreement to settle and

compromise all claims and causes of action in the underlying case, and request that this Court

vacate the trial court’s judgment and dismiss the appeal.

       An intermediate court of appeals is authorized to vacate a trial court’s judgment and

dismiss the underlying case. See TEX .R.APP .P. 43.2(e). Further, Texas Rule of Appellate

Procedure 42.1 permits an appellate court to dispose of an appeal pursuant to a settlement

agreement. TEX .R.APP .P. 42.1(a)(2). We may render judgment effectuating the parties’

settlement agreement, set aside the trial court’s judgment, and remand the case to the trial court

for rendition of judgment in accordance with the agreement, or abate the appeal and permit the

trial court to conduct proceedings to effectuate the agreement. TEX .R.APP .P. 42.1(a)(2). While

we are authorized to vacate the trial court’s judgment and dismiss the underlying case, we are not
authorized to both vacate the judgment and dismiss the appeal.

       Therefore, having considered the motion and the action requested by the parties, we will

GRANT the motion in part and vacate the trial court’s judgment dated March 19, 2007, without

consideration of the merits and remand the case to the trial court for further proceedings in

accordance with the settlement agreement. With regard to the parties’ request that we dismiss

the appeal, the motion is denied. Pursuant to the settlement agreement, costs will be taxed

against the party incurring the same. See TEX .R.APP .P. 42.1(d). We direct the Clerk of the Court

to issue the mandate of the Court immediately.




August 31, 2010
                                              DAVID WELLINGTON CHEW, Chief Justice


Before Chew, C.J., McClure, and Rivera, JJ.




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