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Vaschenko v. Novosoft, Inc.

Court of Appeals of Texas, Third District, Austin

March 30, 2018

Vladimir Vaschenko, Appellant
v.
Novosoft, Inc.; Philip Brenan; and Patricia Eure, Appellees

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. D-1-GN-11-002883, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Bourland

          MEMORANDUM OPINION

          CINDY OLSON BOURLAND, JUSTICE.

         We withdraw the opinion and judgment dated January 26, 2018, and substitute the following opinion and judgment in their place. We deny appellant's motion for rehearing.

         This case arises out of a business relationship between appellant Vladimir Vaschenko, a Russian citizen, and appellees Novosoft, Inc., Philip Brenan, and Patricia Eure (collectively, Novosoft). We must first decide which of two purportedly final judgments rendered within the trial court's period of plenary power-a sanctions-based dismissal order and a summary judgment-is the operative final judgment. Because we conclude that the summary judgment is the operative final judgment, we must next decide whether the trial court erred in granting summary judgment in favor of Novosoft on the basis of limitations. For the following reasons, we will affirm.

         BACKGROUND

         In 1992, Vaschenko and Brenan began a business relationship to provide computer-software services to clients in Russia and the U.S. In 2003, the relationship deteriorated, and litigation ensued between the parties in Russia. In September 2011, Vaschenko filed suit in the present case, alleging various causes of action against Novosoft. In October 2015, Novosoft filed a motion for summary judgment claiming that Vaschenko's claims were barred by applicable statutes of limitations, which the trial court heard and took under advisement. Before the trial court ruled on that motion, Novosoft filed a motion for death-penalty sanctions seeking dismissal of the case for discovery abuse, which the court granted, dismissing all of Vaschenko's claims with prejudice. The following day, however, the court granted Novosoft's motion for summary judgment, which also purported to dismiss all of Vaschenko's claims. Vaschenko has appealed from both purportedly final judgments.

         DISCUSSION

         In six issues on appeal, Vaschenko challenges the dismissal order and underlying discovery order and argues that the summary judgment was granted in error.

         I. Which of two purportedly final judgments rendered during a trial court's period of plenary power is the operative final judgment?

         A. Procedural background

         The first issue we must decide is whether the sanctions-based order of dismissal or the summary judgment-both rendered during the trial court's period of plenary power-is the final, appealable judgment that we may review on appeal. Relevant to that issue are the procedural events that gave rise to the two judgments:

10/19/15 Novosoft files a motion for summary judgment
11/12/15 Judge Orlinda Naranjo hears Novosoft's motion for summary judgment and takes the motion under advisement
11/24/15 Novosoft files a motion for death-penalty sanctions seeking dismissal of the case based on Vaschenko's failure to appear for a court-ordered deposition
12/10/15 Judge David Phillips hears Novosoft's motion for death-penalty sanctions and grants it that day, dismissing the case with prejudice
12/11/15 Judge Naranjo grants Novosoft's motion for summary judgment against Vaschenko on all of his causes of action against Novosoft

         The parties did not seek clarification from the trial court as to which judgment was the operative final judgment. On January 11, 2016, Vaschenko filed a notice of appeal in which he appealed from both the December 10 dismissal order and the December 11 summary judgment.[1]

         B. The parties' arguments

         The parties agree that both the December 10 dismissal order and the December 11 summary judgment purport to be (and substantively could be) final judgments. However, there can be only one operative final judgment in a cause. See Tex. R. Civ. P. 301; Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 562 (Tex. App.-San Antonio 1998, pet. denied). Thus, when a trial court purports to render two final judgments in a case, only one can survive. See ...


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