


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00047-CV
 
GMAC Commercial Finance, LLC,
                                                                      Appellant
 v.
 
Humboldt Wedag, Inc.,
                                                                      Appellee
 
 
 

From the 40th District Court
Ellis County, Texas
Trial Court No. 65034
 

MEMORANDUM  Opinion

 




          GMAC Commercial Finance, LLC and
Humboldt Wedag, Inc. filed competing summary judgment motions in the trial
court.  The court granted Humboldt Wedag’s and denied GMAC’s.  GMAC then
perfected this appeal.  However, the issue of GMAC’s request for attorney’s
fees has not yet been resolved by the trial court.  Accordingly, no final,
appealable judgment has been rendered as of this date.  Thus, Humboldt Wedag
has filed a motion to dismiss the appeal.
          With some exceptions not applicable
here, “an appeal may be taken only from a final judgment.”  Sultan v. Mathew,
178 S.W.3d 747, 751 (Tex. 2005) (quoting Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001)).  “A judgment is ‘final’ for purposes of appellate
jurisdiction if it disposes of all issues and parties in a case.”  Id. (quoting Street v. Second Court of Appeals, 756 S.W.2d 299, 301 (Tex. 1988) (orig. proceeding)).  Because no final judgment has been rendered in this case,
we do not have jurisdiction.
          The Clerk of this Court notified the
parties that the appeal
is subject to dismissal for want of
jurisdiction because no final judgment has been rendered.  See Tex. R. App. P. 42.3(a).  In response, GMAC asks that the appeal be abated until
the attorney’s fee issue is resolved by the trial court.  GMAC relies on this
Court’s decision in Harrison v. Texas Department of Criminal Justice to
support this request.  134 S.W.3d 490 (Tex. App.—Waco 2004, order) (per curiam). 
In that case however, the trial court’s intent to render a final judgment was
apparent from the record.  Id. at 492.
          Here, it is undisputed
that the issues of attorney’s fees remains unresolved by the trial court. 
Thus, the trial court’s plenary power has not expired, and the court could in
fact set aside its prior summary judgment ruling.  Regardless, it is clear from
the record that the trial court has not rendered a final judgment. 
Accordingly, we do not have jurisdiction.  See Sultan,
178 S.W.3d at 751.
          Therefore, we grant Humboldt Wedag’s
motion and dismiss the appeal for want of jurisdiction.
PER CURIAM
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Appeal dismissed
Opinion delivered and
filed May 10, 2006
[CV06]

