COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MEMORANDUM OPINION

            This interlocutory appeal arises from the trial court’s denial of Appellant Heramb K. Singh, M.D.’s motion for summary judgment based on an assertion of official immunity. Pending before the Court is the parties’ “Joint Motion to Vacate Summary Judgment Ruling and Dismiss Entire Case with Prejudice.” The parties ask that we vacate the trial court’s “Order Denying Defendant’s Motion for Summary Judgment,” and dismiss the appeal and the underlying case with prejudice. The parties have complied with the requirements of Rule 42.1(a)(2).

            However, while this Court may either dismiss the appeal or vacate the order of the trial court and dismiss the underlying case with prejudice, we are not permitted to do both. See Creech v. Pendergrass, No. 08-01-00445-CV, 2002 WL 536296, at *1 (Tex. App.--El Paso April 11, 2002, no pet.) (not designated for publication). After considering the joint motion to dismiss, we conclude that the motion should be granted in part and denied in part. Accordingly, we grant that portion of the joint motion seeking to vacate the trial court’s “Order Denying Defendant’s Motion for Summary Judgment” signed on June 26, 2006, and dismiss the underlying case with prejudice. See Tex. R. App. P. 42.1(a)(2)(A), 43.2(e). We deny that portion of the joint motion seeking to dismiss the appeal. The motion also specifies that each party will bear its own costs, therefore, costs are taxed against the party incurring the same.

                                                                        KENNETH R. CARR, Justice

February 1, 2007

Before Chew, C.J., McClure, and Carr, JJ.