                                       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


       1
       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



                                             2
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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