JC Project Management Services, Inc., John Ward, and Nancy Ward v. Cedar Point Property Owners Association, Inc., Waterfront Development, LLC, Vacation Home Builders, Inc., Charles Von Schmidt, Peninsula Interests GP, LLC, Peninsula Interests, LP, and Cedar Point Holdings

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00233-CV
____________________

JC PROJECT MANAGEMENT SERVICES, INC., JOHN WARD, AND
NANCY WARD, Appellants

V.

CEDAR POINT PROPERTY OWNERS ASSOCIATION, INC.,
WATERFRONT DEVELOPMENT, LLC, VACATION HOME BUILDERS,
INC., CHARLES VON SCHMIDT, PENINSULA INTERESTS GP, LLC,
PENINSULA INTERESTS, LP, AND CEDAR POINT HOLDINGS,
Appellees
_______________________________________________________ ______________

On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. CIV26682
________________________________________________________ _____________

MEMORANDUM OPINION

Appellants, JC Project Management Services, Inc., John Ward, and Nancy

Ward (Appellants), filed an appeal of a judgment dated March 7, 2014, granting a

motion for a partial summary judgment. Appellee, Cedar Point Property Owners

Association, Inc. (CPPOA), filed a motion to dismiss the appeal for lack of

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jurisdiction, arguing that the March 7, 2014 judgment was not a final judgment

because it did not dispose of all of the live claims before the trial court. In their

response, the Appellants agree that CPPOA’s motion for partial summary

judgment did not address all of the claims asserted in Appellants’ live pleading.

Appellants state that they have appealed “out of an abundance of caution” because

it is “unclear” whether the court’s judgment at issue could be construed to be final.

On appeal the parties agree that the trial court granted CPPOA’s plea to the

jurisdiction in an order dated October 4, 2013. In that order, the trial court

purportedly dismissed all of Appellants’ claims against CPPOA, but the order says

nothing about CPPOA’s pending counterclaim against Appellants. On or about

November 27, 2013, Appellants filed their Fifth Amended Petition wherein they

purport to add a “new derivative claim” concerning CPPOA. On December 19,

2013, the trial court granted a motion for partial summary judgment and dismissed

Appellants’ breach of fiduciary duty and declaratory judgment claims as to six of

the other defendants. Then, on March 7, 2014, the trial court granted CPPOA’s

motion for partial summary judgment dismissing the Appellants’ claims against

CPPOA. None of the foregoing orders or judgments references CPPOA’s

counterclaim against Appellants wherein CPPOA requested affirmative relief and a

declaratory judgment confirming the validity of the amended deed restrictions.

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Neither the Appellants nor CPPOA argue that the counterclaim was subsumed into

any of the respective orders or judgments, and there is nothing in the record to

indicate that CPPOA non-suited its request for affirmative relief. The orders and

judgment also do not contain severance language.

“[W]hen there has not been a conventional trial on the merits, an order or

judgment is not final for purposes of appeal unless it actually disposes of every

pending claim and party or unless it clearly and unequivocally states that it finally

disposes of all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191,

205 (Tex. 2001). “An order that adjudicates only the plaintiff’s claims against the

defendant does not adjudicate a counterclaim[.]” Id. The March 7, 2014 judgment

lacks clear and unequivocal language of finality and it does not address

counterclaims. See id. at 206. We conclude that the March 7, 2014 judgment is

interlocutory. Therefore, we grant the motion to dismiss and dismiss the appeal for

lack of jurisdiction.

APPEAL DISMISSED.

________________________________
LEANNE JOHNSON
Justice

Submitted on July 9, 2014
Opinion Delivered July 10, 2014

Before Kreger, Horton, and Johnson, JJ.
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