Trust Fund for Dominique Haynes v. Walden on Lake Conroe Community Improvement Association, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-02-491 CV ____________________

THERESA HEARN-HAYNES, ON BEHALF OF TRUST FUND FOR DOMINIQUE HAYNES, Appellant

V.

WALDEN ON LAKE CONROE COMMUNITY IMPROVEMENT ASSOCIATION, INC., Appellee

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On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 01-10-06733-CV

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MEMORANDUM OPINION ⁽¹⁾  

Theresa Hearn-Haynes, on behalf of Trust Fund for Dominique Haynes, appeals a summary judgment for the plaintiff, Walden on Lake Conroe Community Improvement Association, Inc. Because the trial court's summary judgment order did not dispose of all of the parties and issues, there is no final judgment in this case. Therefore, we dismiss this appeal for want of jurisdiction.

Walden on Lake Conroe Community Improvement Association, Inc., ("Walden") filed a suit to collect unpaid annual assessments and for foreclosure of a condominium unit owned by Trust Fund for Dominique Haynes ("the Trust"). Walden served Theresa Hearn-Haynes ("Hearn-Haynes") in her capacity as trustee of the Trust. Hearn-Haynes filed a plea in abatement, in which she challenged alternate service obtained upon her in her representative capacity, and a combined motion to quash service, general denial (presumably for the Trust), and counterclaim (apparently in her individual capacity) for deceptive trade practices, intentional infliction of emotional distress, and violation of constitutional rights. Walden answered Hearn-Haynes's counterclaim with a general denial and a verified denial of Hearn-Haynes's capacity to sue. See  Tex. R. Civ. P. 93. Walden filed a motion for summary judgment on its claims against the Trust. The trial court granted summary judgment for $2,532.00 in unpaid assessments and $520.02 pre-judgment interest, entered judgment for foreclosure of the lien on the condominium unit, and awarded attorney fees for trial and appeal. The trial court also denied Hearn-Haynes's special pleas and motion to quash service. Although titled "Final Order for Summary Judgment," the summary judgment did not mention the counterclaim.   

We have jurisdiction to entertain appeals from final orders and from certain interlocutory orders. Hinson v. Thompson, 112 S.W.3d 766, 768 (Tex. App.--Beaumont 2003, no pet.). The summary judgment entered in this case is not final because it neither disposes of Hearn-Haynes's claims against Walden nor does it contain the finality language required by Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). The traditional "Mother Hubbard" clause contained in the summary judgment is not language of unmistakable finality sufficient to render final an otherwise partial summary judgment. ⁽²⁾ Id. at 204.

We hold the summary judgment entered by the trial court is an interlocutory judgment from which no appeal may be had absent disposition of the remaining issues or an order of severance. We decline to abate the appeal pursuant to Tex. R. App. P. 44.4 because, regardless of their potential merit or lack thereof, the outstanding claims involve more than perfunctory issues which can be procedurally cured by the trial court entering a clarifying or similar order. See Garcia v. Commissioners Court of Cameron County, 101 S.W.3d 778, 786 (Tex. App.--Corpus Christi 2003, no pet.). Accordingly, we dismiss the appeal for want of jurisdiction.

APPEAL DISMISSED.

PER CURIAM

Submitted on May 20, 2004

Opinion Delivered June 17, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.

2. The summary judgment recites that "All relief not granted is hereby expressly DENIED."