Jose Luis Alarcon v. Emilio Castillo, Individually and D/B/A Expert Rebar Services

• Court: Court of Appeals of Texas
• Decided: June 28, 2016
• Docket: 05-16-00436-CV
• Status: Published

Opinion

DISMISS and Opinion Filed June 28, 2016.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00436-CV

JOSE LUIS ALARCON, Appellant V. EMILIO CASTILLO, INDIVIDUALLY AND D/B/A EXPERT REBAR SERVICES, Appellee

On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-10456

MEMORANDUM OPINION Before Justices Myers, Stoddart, and Whitehill Opinion by Justice Stoddart In a letter dated June 2, 2016, the Court questioned its jurisdiction over the appeal

because there did not appear to be a final judgment. We instructed appellant to file a letter brief

addressing our concern and gave appellee an opportunity to respond.

Generally, this Court has jurisdiction only over appeals from final judgments and certain

interlocutory orders as permitted by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,

195 (Tex. 2001). A final judgment is one that disposes of all pending parties and claims. See id.

Although a judgment following a trial on the merits is presumed to be final, there is no such

presumption of finality following a summary judgment. See id. at 199–200.

Appellee asserted counterclaims for damages and attorney’s fees. The trial court’s order

granting appellee’s motion for summary judgment states “[d]efendant’s claims for affirmative relief are still pending.” In his letter brief, appellant contends what remains is essentially a

motion for sanctions and that a pending motion for sanctions does not prevent a judgment from

being final. See Lane Bank Equip. Co. v. Smith Southern Equip., Inc., 10 S.W.3d 308, 312 (Tex.

2000). The record before this Court, however, does not contain a motion for sanctions. The

record before this Court contains a judgment that, on its face, does not dispose of all claims.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

/Craig Stoddart/ CRAIG STODDART 160436F.P05 JUSTICE

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSE LUIS ALARCON, Appellant On Appeal from the 191st Judicial District Court, Dallas County, Texas No. 05-16-00436-CV V. Trial Court Cause No. DC-15-10456. Opinion delivered by Justice Stoddart. EMILIO CASTILLO, INDIVIDUALLY Justices Myers and Whitehill participating. AND D/B/A EXPERT REBAR SERVICES, Appellee

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee EMILIO CASTILLO, INDIVIDUALLY AND D/B/A EXPERT REBAR SERVICES recover his costs of this appeal from appellant JOSE LUIS ALARCON.

Judgment entered this 28th day of June, 2016.

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