R. Craig Rathmann and Rathmann & Associates, L.P. v. James Ryan O'Hara

• Court: Court of Appeals of Texas
• Decided: July 28, 2016
• Docket: 01-16-00167-CV
• Status: Published

Opinion

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER

Appellate case name: R. Craig Rathmann and Rathmann & Associates, L.P. v. James Ryan O'Hara

Appellate case number: 01-16-00167-CV

Trial court case number: 2015-27007A

Trial court: 270th District Court of Harris County

On June 15, 2016, appellants and appellee filed a joint agreed motion to vacate the trial court’s judgment and dismiss the cause. Within that motion, the parties cited to Rules of Appellate Procedure 42 and 43, and asked this Court to vacate the trial court’s judgment, dismiss the underlying cause, and dismiss the appeal. Rule 42 provides for voluntary dismissal of the appeal by agreement of the parties. TEX. R. APP. P. 42.1(a)(2). Under this rule, we may render judgment effectuating the parties’ agreement. Id. at 42.1(a)(2)(A). Rule 43 sets out the types of judgments we may render. TEX. R. APP. P. 43.2. Under this rule, we may render specific types of judgments, including a judgment vacating the trial court’s judgment and dismissing the case, see id. at 43.2(e), or dismissing the appeal. See id. at 43.2(f). There is no provision under Rule 43.2 for vacating the trial court’s judgment, dismissing the case, and dismissing the appeal. See Mr. Yamaha, Inc. v. McIntyre, No. 08–11–00295–CV, 2012 WL 225697, at *1 (Tex. App.—El Paso Jan. 25, 2012, no pet.) (a request to vacate trial court judgment and dismiss appeal is improper request as it seeks incompatible rulings). Because the motion requests a judgment we may not render under Rule 43.2, we deny the motion. The parties may file an amended motion, requesting rendition of judgment in compliance with either Rule 42 or 43. See TEX. R. APP. P. 42.1(a)(2), 43.2. It is so ORDERED.

Judge’s signature: _/s/ Rebeca Huddle  Acting individually

Date: July 28, 2016