Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-11-002883, HONORABLE ORLINDA NARANJO, JUDGE
Chief Justice Rose, Justices Goodwin and Bourland
OLSON BOURLAND, JUSTICE.
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.
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.
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.
issues on appeal, Vaschenko challenges the dismissal order
and underlying discovery order and argues that the summary
judgment was granted in error.
Which of two purportedly final judgments rendered
during a trial court's period of plenary
power is the operative final judgment?
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
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.
The parties' arguments
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