34th S&S, LLC D/B/A Concrete Cowboy and Daniel Joseph Wierck v. Kacy Clemens and Conner Capel

Appeal Reinstated; Motion Granted; Appeal Dismissed and Memorandum
Majority and Concurring and Dissenting Opinions filed December 22, 2022.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-21-00413-CV

  34TH S&S, LLC D/B/A CONCRETE COWBOY AND DANIEL JOSEPH
                       WIERCK, Appellants

                                         V.

            KACY CLEMENS AND CONNER CAPEL, Appellees

                     On Appeal from the 113 District Court
                            Harris County, Texas
                      Trial Court Cause No. 2019-07278


      CONCURRING AND DISSENTING MEMORANDUM OPINION

      While I concur with granting appellants’ unopposed motion to dismiss
appeal, I do not agree that a statement in a certificate of conference that appellees
are “not opposed” to the motion means that appellees “agree” to the motion. Every
lawyer understands that difference.

      The Texas Rules of Appellate Procedure state, “Absent agreement of the
parties, the court will tax costs against the appellant.” Tex. R. App. P. 42.1(d).
That’s unambiguous, and the court should follow the rule.1

       In addition, the court in its opinion states that the trial court’s final judgment
was signed on April 26, 2021. On appeal, the parties disputed whether the April
26, 2021 judgment was modified and therefore not the trial court’s final judgment.
The statement in the majority opinion declaring the trial court’s final judgment to
have been signed on April 26, 2021 appears to agree with appellants’ argument
that the final judgment was not modified by the July 19, 2021 signed order
granting a motion to modify the judgment in which the trial court stated, “IT IS,
FURTHER, ORDERED, ADJUDGED, AND DECREED that the Final Judgment
will reflect actual damages for Plaintiff Conner Capel to include ‘past physical
disfigurement’ and ‘physical disfigurement that, in reasonable probability, Conner
Capel will incur in the future’ while omitting ‘physical pain that, in reasonable
probability will incur in the future’ from Plaintiff Capel’s actual damages.”

       I do not join the court’s opinion that the April 26, 2021 is the final judgment.
That is a disputed legal issue which we cannot determine when the appeal is moot,
and I express no opinion on what constitutes the trial court’s final judgment. I
dissent to the court’s failure to follow a mandatory rule on taxation of costs.
Finally, I concur in granting appellants’ motion for a voluntary dismissal of the
appeal.


                                             /s/       Charles A. Spain
                                                       Justice

Panel consists of Chief Justice Christopher and Justices Spain and Wilson (Spain,
J., concurring and dissenting).


       1
        The fact that the appellees’ costs are minimal doesn’t mean the court gets to treat “not
opposed” as “agreed.”

                                                   2