Opinion
No. 05-05-01494-CV
Opinion Filed January 18, 2006.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. cc-05-4034-B.
Dismissed.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Before the Court is appellee's motion to dismiss the appeal filed on December 6, 2005. Appellee moves to dismiss the appeal on the ground that the notice of appeal was untimely filed. Appellant sued appellee and Edmund Rugger Burke, III. Burke filed a counterclaim for sanctions. Appellee and Burke each filed a motion for summary judgment on all claims asserted against them by appellant. The trial court granted Burke's motion on June 30, 2005 and appellee's motion on July 14, 2005. Subsequently, on October 7, 2005, the trial court entered an agreed order of dismissal relating to all claims and counterclaims between appellant and Burke.
Burke is not a party to this appeal.
Appellant filed its notice of appeal on November 4, 2005. Appellee contends final judgment was entered on July 14, 2005 when it granted its motion for summary judgment. Therefore, appellee asserts, the notice of appeal was due August 13, 2005. Appellant counters that its November 4, 2005 notice of appeal was timely because final judgment was not rendered until October 7, 2005 when the trial court dismissed Burke's counterclaim for sanctions.
A claim for sanctions asserted in a pleading is treated as a motion for sanctions. See Mantri v. Bergman, 153 S.W.3d 715, 717 (Tex.App.-Dallas 2005, pet. denied). In contrast to a pending cause of action, a pending motion for sanctions does not render interlocutory an otherwise final judgment. Id.; Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000). A trial court has until the expiration of its plenary power to rule on a motion for sanctions or it loses jurisdiction to do so. See Scott White Mem. Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996).
Although Burke asserted his claim for sanctions in his pleading, it is treated as a motion for sanctions. See Mantri, 153 S.W.3d at 717. Burke and appellee were the only defendants and each of them moved for summary judgement on all claims asserted against them by appellant. The trial court granted Burke's motion on June 30, 2005 and appellee's motion on July 14, 2005. Thus, as of July 14, 2005, all claims against all parties were finally disposed of.
Final judgment was rendered on July 14, 2005 and Burke's pending motion for sanctions did not render the judgment interlocutory. Appellant's notice of appeal was due August 13, 2005. See Tex.R.App.P. 26.1. The notice of appeal filed by appellant on November 4, 2005 was untimely and failed to invoke this Court's jurisdiction.
Accordingly, we GRANT appellee's motion to dismiss. We DISMISS this appeal for want of jurisdiction. See Tex.R.App.P. 42.3(a).