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

          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]