Opinion issued April 7, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-11-01106-CV

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MICHAEL WEBB, Appellant

V.

AMERICAN EXPRESS CENTURION BANK, Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Case No. 985259

MEMORANDUM OPINION

After this Court issued an Order and Notice of Intent to Dismiss, appellant, 

Michael Webb, filed a Response to Order and Motion to Retain Appeal on Docket, 

requesting that we remand this case to the trial court for a new trial “as agreed 
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upon” by the parties in the “Settlement Agreement.”1 Because no live controversy 

exists between the parties, we lack jurisdiction over this appeal. Accordingly, we 

dismiss the appeal.

Background

After Webb filed an unopposed motion to abate the appeal and extend the 

“deadlines for filing any further documents” to allow the parties to finalize their 

settlement agreement, we abated the appeal and ordered the parties “to advise this 

Court of the status of the proceedings or file a motion to dismiss the appeal if the 

case settles within three months of the date of this order.” Although Webb then 

filed an “Amendment to Rule 11 Settlement Agreement (To Be Filed of Record),” 

the parties did not file a status report or motion to dismiss.

We subsequently ordered the parties “to file a document advising the Court 

of the status of the proceedings or a motion to dismiss.” After Webb filed a 

Motion to Enforce Settlement and Remand to Facilitate Settlement Agreement, we 

denied the motion, which does not reflect whether appellee, American Express 

Centurion Bank, opposed or agreed to his requested relief. We then reinstated the 

case on the Court’s active docket and ordered the parties to “demonstrate, within 

14 days of the date of [that] order, that there is a live controversy between them as 

to the merits of the appeal.”

 1 See TEX. R. APP. P. 42.1(a)(2)(B).
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Subject Matter Jurisdiction

In his motion, Webb requests that we “retain this appeal on the appellate 

docket,” order a new trial, and remand “to the Trial Court to facilitate the 

provisions of the Settlement Agreement.” See TEX. R. APP. P. 42.1(a)(2)(B). In 

accordance with an agreement signed by the parties or their attorneys and filed 

with the clerk, we may

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 . . . .

Id. However, this rule “does not permit an appellate court to order a new trial 

merely on the agreement of the parties absent reversible error, or to vacate a trial 

court’s judgment absent reversible error or a settlement.” Id. at cmt.

Webb, in his motion, identifies only one “actual controversy existing 

between the Parties,” namely that “[t]he Parties agreed in writing to a new trial and 

no new trial [has] been granted.” He further clarifies that “[t]he controversy is 

[American Express’s] failure to abide by the terms and conditions of the 

Settlement Agreement.” Webb does not ask us to resolve the appeal on the merits. 

Rather, he asks that we “contin[ue] the abatement of the appeal until the Trial 

Court effectuates the Settlement Agreement after a remand for that purpose.” He 

concedes that the parties have not performed all of their obligations under the 
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purported settlement agreement, nor has American Express released its underlying 

claims against Webb.

We cannot grant the relief that Webb requests, i.e., a new trial, absent 

reversible error. Id. Nor can we “remand the case to the trial court for rendition of 

judgment in accordance with the agreements” under rule 42.1(a)(2)(B). Because 

the parties have not satisfied all conditions precedent to entry of any judgment 

under their rule 11 agreement, the agreement does not provide for any judgment 

that the trial court could enter on remand.

The existence of a live controversy is essential to the exercise of appellate 

jurisdiction. See, e.g., Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 

(Tex. 2000). Accepting Webb’s representations as true, the parties settled their 

dispute by their rule 11 agreement in 2012. At that time, there ceased to be a live 

controversy between Webb and American Express. Any disputes that arose later 

over the parties’ performance of that agreement are distinct from the issues 

presented in this appeal. Accordingly, we hold that no live controversy exists 

between the parties. We further hold that we have no jurisdiction over this appeal.

Conclusion

Because we lack jurisdiction, we dismiss the appeal. We order that Webb

pay all appellate costs. And we dismiss any pending motions as moot.
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We direct the Clerk to issue the mandate within 10 days of the date of this 

opinion. See TEX. R. APP. P. 18.1.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Huddle.