Mr. Yamaha, Inc., Tracy McIntyre and Gene McIntyre v. Michael McIntyre and Laura McIntyre

• Court: Court of Appeals of Texas
• Decided: January 25, 2012
• Docket: 08-11-00295-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

MR. YAMAHA, INC., TRACY § MCINTYRE AND GENE MCINTYRE, § No. 08-11-00295-CV Appellants, § Appeal from the v. § 34th Judicial District Court

MICHAEL MCINTYRE AND § of El Paso County, Texas LAURA MCINTYRE, Appellees. (TC# 2006-316) §

MEMORANDUM OPINION

On December 8, 2011, the Court granted an agreed motion to abate this appeal to allow

the parties to finalize their settlement of this dispute. Appellants, Mr. Yamaha, Inc., Tracy

McIntyre, and Gene McIntyre, and Appellees, Michael McIntyre and Laura McIntyre, have since

filed an agreed motion to vacate the trial court’s judgment and dismiss the appeal because the

parties have settled all matters in controversy. We therefore reinstate the appeal. Because we

conclude that we are not authorized to grant all of the relief requested by the joint motion, we

grant the motion in part and deny in part.

Rule 43.2 specifies the types of judgments a court of appeals is authorized to enter.

TEX.R.APP.P. 43.2. It provides that a court of appeals may:

(a) affirm the trial court’s judgment in whole or in part;

(b) modify the trial court’s judgment and affirm it as modified;

(c) reverse the trial court’s judgment in whole or in part and render the judgment

that the trial court should have rendered; (d) reverse the trial court’s judgment and remand the case for further proceedings;

(e) vacate the trial court’s judgment and dismiss the case; or

(f) dismiss the appeal.

Rule 43.2(e) authorizes an appellate court to vacate the trial court’s judgment and dismiss the

underlying suit. Under Rule 43.2(f), we are authorized to dismiss the appeal.

The agreed motion requests that we vacate the trial court’s judgment, but it does not

request that we dismiss the underlying suit. Instead, the parties request that we dismiss the

appeal. We do not have authority, however, to both dismiss the appeal and vacate the trial

court’s judgment because the two actions are incompatible. See Smith and Marrs, Inc. v. D.K.

Boyd Land and Cattle, Co., 224 S.W.3d 270 (Tex.App.--El Paso 2005, no pet.); Kisler v.

Coldwell, 201 S.W.3d 187, 187-88 (Tex.App.--El Paso 2006, no pet.). Rather than denying the

agreed motion outright, we will grant the request to vacate the trial court’s judgment and remand

the cause for further proceedings as may be necessary to effectuate the parties’ agreement. We

deny the request to dismiss the appeal. In accordance with the parties’ motion, we assess costs

against the party incurring same. See TEX.R.APP.P. 42.1(d).

GUADALUPE RIVERA, Justice January 25, 2012

Before McClure, C.J., Rivera, J., and Antcliff, J.

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