Unreported / Non-Citable
Background
Rialto Homes, LP, Rialto Management, LLC, and Toll Brothers, Inc. appealed from a proceeding in the 224th Judicial District Court of Bexar County involving Matthew and Tatum Toohey, individually and as next friends of minors BT and WT.
While the appeal was pending, Toll Brothers moved to dismiss its appeal against the Tooheys. The motion did not disclose any agreement concerning the assessment of appellate costs.
The Court’s Holding
The Texas Fourth Court of Appeals granted Toll Brothers’ motion and dismissed the appeal as to Toll Brothers only. Applying Texas Rule of Appellate Procedure 42.1(b), the court concluded that this severable portion of the proceeding could be dismissed without prejudicing the remaining parties.
The court left the appeal by Rialto Homes and Rialto Management pending and restyled the case accordingly. Because the parties had not disclosed an agreement about costs, the court assessed all appellate costs incurred up to that point against Toll Brothers under Rule 42.1(d).
Key Takeaways
- Only Toll Brothers’ portion of the appeal was dismissed.
- Rialto Homes and Rialto Management remain appellants in the pending appeal.
- Toll Brothers must bear all appellate costs incurred through the partial dismissal.
Why It Matters
The memorandum opinion illustrates that a Texas appellate court may dismiss a severable portion of an appeal when doing so will not prejudice the remaining parties. It also underscores that, absent an agreement allocating costs, costs are taxed against the appellant whose appeal is dismissed.