R. Craig Rathmann and Rathmann & Associates, L.P. v. James Ryan O'Hara ( 2016 )

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