Opinion
No. 14-09-00719-CV
Opinion filed December 31, 2009.
On Appeal from the 333rd District Court Harris County, Texas, Trial Court Cause No. 2008-03807.
Panel consists of Justices YATES, SEYMORE, and BROWN.
MEMORANDUM OPINION
This is an attempted appeal from an order signed July 17, 2009. The clerk's record was filed on October 9, 2009.
Background
Appellee, Alice Childs, entered into a contract with appellant, Paul Hamilton, and his son, Clint Hamilton, to repair her roof. A dispute ensured over the repair work and appellee refused to pay for the repair. In his original petition filed in the trial court, appellant claimed appellee defamed him and his business by alleging he was engaged in a "fraudulent roof repair scheme." Appellee answered appellant's suit and filed counterclaims against appellant and his son for violations of the Texas Deceptive Trade Practices Act. On March 27, 2009, the trial court entered an interlocutory default judgment against Clint Hamilton on appellee's DTPA counterclaim.
On July 17, 2009, the trial court entered a partial summary judgment against appellant on his libel and defamation claims. The trial court specifically noted, however, that the "matter remain on the Court's trial docket for trial on the issues of liability, damages and reasonable attorney's fees on [appellee's] counterclaim as to Counter-Defendant Paul Hamilton and as to damages and reasonable attorney's fees alone on the Defendant's counterclaim as to Counter-Defendant Clint David Hamilton."
On August 14, 2009, appellant filed a notice of non-suit, stating he no longer wished to pursue his claims against appellee. On August 17, 2009, he filed a notice of appeal of the trial court's July 17, 2009 judgment.
Discussion
On December 3, 2009, appellee filed a motion to dismiss the appeal alleging the July 17, 2009 judgment is interlocutory. Appellant filed no response. Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding).
A final judgment is the judgment or order that disposes of all of the parties and issues in the suit, including any counterclaims and cross-claims. See Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986). In this case, appellee's counterclaim remained alive after the partial summary judgment was granted. Therefore, the partial summary judgment did not dispose of all parties and issues in the suit and is interlocutory. As such, it is not an appealable order. See Lehmann, 39 S.W.3d at 195.
Frivolous Appeal Damages
Appellee further asserts that she is entitled to damages for a frivolous appeal pursuant to Texas Rule of Procedure 45. If a court of appeals determines that an appeal is frivolous, it may, after notice and a reasonable opportunity for response, award just damages to the prevailing parties. See Tex. R. App. P. 45. Whether to grant sanctions is a matter of discretion, which we exercise with prudence and caution, after careful deliberation. See Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex. App.-Houston, 1999 no pet.). In determining whether sanctions are appropriate, we consider the record from appellant's point of view at the time appeal was perfected. See id. Among the factors to consider are whether appellant had a reasonable expectation of reversal and whether he pursued the appeal in bad faith. See id. In applying these factors, we decline to impose sanctions under rule 45 as requested by appellee.
Accordingly, the appeal is ordered dismissed for want of jurisdiction.