## NUMBER 13
- 19
- 00 499
- C V
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

– EDINBURG

ANDREW CONTRERAS AND MARTHA ANN CONTRERAS , Appellant s , v. DREAM HOME RENOVATORS, LLC , Appellee.

On appeal from the County Court at Law No. 10 of Bexar County, Texas.



## MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina Memorandum Opinion by Justice Benavides
Appellants Andrew Contreras and Martha Ann Contreras appealed a final judgment rendered against them in trial court cause number 2019CV06354 in the County2 Court at Law No. 10 of Bexar County, Texas. 1 Appellants have now filed an opposed motion to dismiss their appeal. According to their motion, appellants “ no longer wish to pursue this appea l ” and they request that we dismiss it pursuant to Texas Rule of Appellate Procedure 42.1(a)(1). See T EX

. R. A PP

. P . 42.1(a)(1). Appellants assert, however, that appellee, Dream Home Renovators, LLC (Dream Home) , opposes their
motion to dismiss and will only agree to a dismissal if this Court awards Dream Home fees and costs as outlined in the final judgment for an “ unsuccessful ” appeal. In this regard, the final judgment awards Dream Home damages for lost rentals , attorney ’ s fees, and, in relevant p art , also awards : [A] n additional $15,000 in attorney ’ s fees if [appellants] file an appeal in the court of appeals that is ultimately unsuccessful , an additional $15,000 in attorney ’ s fees if [appellants] file a petition for review in the Supreme Court of Texas that is ultimately denied, and an additional $15,000 in attorney ’ s fees if [appellants’] petition for review in the Supreme Court of Texas is granted but relief is not ultimately granted

. . . . (Emphasis added). Appellants assert that they have filed their motion to dismiss the appeal prior to any briefing in this matter and that they do not seek a ruling from the Court
on the m erits of the appeal or whether the appeal would have been successful.
Under Texas Rule of Appellate Procedure 42.1 (a)(1), an appellate court may dismiss an appeal in accordance with an appellant ’ s motion to dismiss the appeal “ unless such disposition would prevent a party from seeking relief to which it would otherwise be
entitled. ” See id. Dream Home did not file a notice of appeal in this case. See id . R. 25.1(c) ( providing that “ [a] party who seeks to alter the trial court ’ s judgment or other appealable

1 Th is appeal was transferred to this Court by order of the Texas Supreme Court. See T EX

. G OV ’ T C ODE A NN

. See T EX

. G OV ’ T C ODE A NN . § 73.001 ( “ The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of t he supreme court, there is good cause for the transfer. ” ).3 order must file a notice of appeal ” and the “ appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just

cause ” ). Accordingly, if the appeal is dismissed, Dream Home will not be prevented from seeking any appellate relief to which it would otherwise be entitled. S ee id. ; Clear Lake City Water Auth. v. Friendswood Dev. Co., Ltd ., 344 S.W.3d 514, 525 n.15 (Tex. App.

— Houston [14th Dist.] 2011, pet. denied) ; see also In re Estate of Brown , No. 12

- 18

- 00269

- CV, 2018 WL 6715876, at *2 (Tex. App.

— Tyler Dec. 21, 2018, no pet.) (mem. op. per curiam); Continental Intermodal Grp

. - S

. Tex., L.L.C. v. Garcia , No. 05

- 16

- 01102

- CV, 2017 WL 1230592, at *1 (Tex. App.

— Dallas Apr. 4, 2017, no pet.) (mem. op.)

. Dream Home did not file a response to the appellants’ motion to dismiss and has not provided this Court with argument or authority supporting its position that dismissing the appeal would prevent it from seeking relief to which it would otherwise be entitled. See T EX

. R.
A PP

. P . 42.1(a)(1). The Court, having examined and fully co nsidered appellants ’ opposed motion to
dismiss , is of the opinion that the appeal should be dismissed. See T EX

. R. A PP

. P

. 42.1(a)(1) . Accordingly, we reinstate this appeal, grant the appellants’ opposed motion to
dismiss , and dismiss the appeal. Given that the appeal is being dismissed without regard to the merits, we express no opinion regarding the proper construction of what constitutes an “unsuccessful” appeal as referenced in the final judgment. C osts will be taxed ag ainst appellants. See id . R. 42.1(d) ( “ Absent agreement of the parties, the court will tax costs against the appellant. ” ) ; see also Cameron County v. Tompkins , No. 13

- 16

- 00279

- CV, 2017 WL 4684140, at *1 (Tex. App.

— Corpus Christi

– Edinburg Oct. 19, 2017, no pet.) (mem. op. per curiam)

.4 GINA M. BENAVIDES Justice
Delivered and filed the 19th day of November , 2020.