City of Fort Worth v. Julius D. Zimlich

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN ON REMAND NO. 03-97-00475-CV City of Fort Worth, Appellant v. Julius D. Zimlich, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. 94-08668, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING The parties have filed a joint motion to dismiss the appeal based on a settlement agreement. As part of that motion, the parties have asked us to render a final judgment that plaintiff/appellee take nothing from defendant/appellant. The court cannot both dismiss an appeal and render judgment. See Panterra Corp. v. American Dairy Queen, 908 S.W.2d 300, 301 (Tex. App.--San Antonio 1995, no writ) (cannot dismiss and affirm). However, given that the trial court judgment awarded plaintiff/appellee recovery against defendant/appellant, and given the motion's request that we render judgment that plaintiff/appellee take nothing, we construe the motion as a joint agreed motion to reverse the trial court's judgment and render judgment that plaintiff/appellee Zimlich take nothing. In that posture, we grant the motion. See Tex. R. App. P. 42.3(c) (may reverse trial court judgment and render judgment that trial court should have rendered). The parties have also requested that costs be taxed to the parties incurring same, which our judgment will reflect. John E. Powers, Justice Before Justices Kidd, B. A. Smith and Powers* Reversed and Rendered Filed: May 17, 2001 Do Not Publish * Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).