MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC APPELLANT v. MARK DISANTI APPELLEE (2010)

ORDER

On October 4, 2010, appellant Mortgage Electronic Registration Systems, Inc., (MERS) and appellee Mark DiSanti filed a joint motion asking us to set aside the judgment of the trial court in the underlying action, remand the case for a new trial, and dismiss this appeal.   Attached to the motion is a document memorializing the intention of the parties to seek the requested relief in this court.   According to the motion, DiSanti obtained a default judgment against MERS on December 4, 2009.   MERS filed a notice of restricted appeal on June 1, 2010.¹

MERS and DiSanti do not direct us to a location in the record where they agree we will find reversible error of the trial court, apparent on the face of the record.   Indeed, the parties do not mention an act of reversible error by the trial court.   Rather, in the motion MERS and DiSanti state their attorneys “have conferred regarding MERS (sic) appeal and have agreed that the default judgment should be set aside and the matter remanded to the trial court for a new trial.”

As authority for the motion, the parties rely on Rule of Appellate Procedure 42.1(a)(2)(A), which permits us to “render judgment effectuating the parties' agreement” in accordance with an agreement signed by the parties or their attorneys and filed with the clerk.  Tex.R.App. P. 42.1(a)(2)(A).

The relief the parties seek by their joint motion is beyond that authorized by Rule 42.1(a)(2).   We may not “order a new trial merely on the agreement of the parties absent reversible error, or vacate a trial court's judgment absent reversible error or a settlement.”   Notes and Comments, Tex.R.App. P. 42.1;  see In re J.A.B., No. 08-06-0201-CV, 2007 Tex.App. Lexis 6312 (Tex.App.-El Paso Aug. 9, 2007, no pet.) (mem.op.) (agreed motion of appellee to reverse and remand proper since appellee conceded one of appellant's points of error and the court of appeals agreed trial court erred).   For that reason, the motion of the parties as presented is denied.

It is so ordered.

FOOTNOTES

FN1. To prevail on a restricted appeal, the appealing party must establish:  (1) it filed notice of the restricted appeal within six months after the judgment was signed;  (2) it was a party to the underlying lawsuit;  (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law;  and (4) error is apparent on the face of the record.  Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004) (citing Tex.R.App. P. 26.1(c), 30;  Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.1999)).   In the motion, the parties agree on the timeliness of the notice of appeal, that MERS was a party to the underlying lawsuit, and that MERS did not participate in the hearing that resulted in the appealed judgment.   No mention is made of a timely postjudgment motion or a request for findings of fact and conclusions of law by MERS..  FN1. To prevail on a restricted appeal, the appealing party must establish:  (1) it filed notice of the restricted appeal within six months after the judgment was signed;  (2) it was a party to the underlying lawsuit;  (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law;  and (4) error is apparent on the face of the record.  Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004) (citing Tex.R.App. P. 26.1(c), 30;  Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex.1999)).   In the motion, the parties agree on the timeliness of the notice of appeal, that MERS was a party to the underlying lawsuit, and that MERS did not participate in the hearing that resulted in the appealed judgment.   No mention is made of a timely postjudgment motion or a request for findings of fact and conclusions of law by MERS.

Per Curiam