NO. 07-10-0010-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 1, 2010
_____________________________
JOHNNY RODRIGUEZ, JR.,
Appellant
v.
JOHN LEZA,
Appellee
_________________________________
FROM THE 237THTH DISTRICT COURT OFLUBBOCK COUNTY;
NO. 2005-532,015; HON. LES HATCH, PRESIDING
_______________________________
Order of Dismissal and For Sanctions
_______________________________
Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.1
Pending before us is the motion of John Leza to dismiss this appeal for want of
jurisdiction. He further requests sanctions against Rodriguez for attempting to perfect it.
We grant the motion.
Rodriguez appeals from a partial summary judgment entered in the cause. This
is not his first time to do so, however. His prior effort ended in a dismissal for want of
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV’T
CODE ANN. §75.002(a)(1) (Vernon Supp. 2004).
jurisdiction on October 5, 2006. We dismissed that appeal because the “Order Granting
Partial Motion for Summary Judgment” did not dispose of all claims. In particular, the
order failed to dispose of Rodriguez’ counterclaim for attorney’s fees. That same
counterclaim remained pending for disposition at the time Rodriguez initiated this
appeal via a notice filed on October 15, 2009. Thereafter, Rodriguez also filed
pleadings in the trial court requesting declaratory relief and breach of contract against
Leza. So, not only does the matter which prevented us from exercising jurisdiction
before still require disposition, so too do the additional claims Rodriguez pled since
then. In the absence of a final judgment or order in this cause, see Crites v. Collins,
284 S.W.3d 839, 840-41(Tex. 2009) (defining a final judgment as one that disposes of
all claims made by all parties), or an order severing the partial summary judgment from
the remaining claims, we still have no jurisdiction to entertain the appeal.
Regarding Leza’s prayer for damages in the form of attorney’s fees, authority
permits us to award each prevailing party just damages should the appeal be deemed
frivolous. TEX. R. APP. P. 45. Appealing the same partial summary judgment without
removing that obstacle which we expressly noted as preventing us from exercising
jurisdiction before causes us concern. This is so because an appeal is frivolous when
there exists no reasonable grounds to believe the judgment would be reversed. Keith v.
Solls, 256 S.W.3d 912, 919-20 (Tex. App.–Dallas 2008, no pet.). Without Rodriguez
removing the aforementioned obstacle, one cannot say he had reasonable grounds to
believe that the partial summary judgment would be reversed if he appealed once
again. Nor did his adding additional, unresolved causes of action to his counterclaim
provide those missing grounds. Thus, we conclude that the appeal was frivolous and
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that Leza should be awarded his damages in the form of attorney’s fees incurred in
seeking dismissal of the appeal. The amount of the fees sought, $460, was attested to
be reasonable and necessary by Leza’s counsel.
Accordingly, we dismiss the appeal for want of jurisdiction and order Johnny
Rodriguez, Jr. to pay John Leza the sum of $460 as damages for initiating a frivolous
appeal.
Brian Quinn
Chief Justice
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