Dismissed and Memorandum Opinion filed November 22, 2016.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00873-CV

THAI XUAN VILLAGE CONDOMINIUM ASSOCIATION, INC., Appellant
                                        V.
                 HIEN LUU AND TRANG PHONG, Appellees

                   On Appeal from the 189th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-32203

                 MEMORANDUM OPINION


      Appellant Thai Xuan Village Condominium Association, Inc. appeals the
summary judgment granted in favor of appellees Hien Luu and Trang Phong (Luu
and Phong) on their claim for wrongful foreclosure. Thai Xuan contends that the
motion filed by Luu and Phong was legally insufficient and failed to establish that
there was no genuine issue of material fact and that Luu and Phong were entitled to
judgment as a matter of law. We dismiss the appeal for want of jurisdiction
because there is no final, appealable order.

                                 BACKGROUND

      Luu and Phong purchased a condominium located in Houston, Texas on
September 29, 2000. Almost twelve years later, their homeowners association Thai
Xuan Village Condominium Association, Inc., (hereafter referred to as the
Association) sold the condominium at a non-judicial foreclosure sale to Kim Pham
for $3,540. The Association conducted the foreclosure sale on the unit because it
claimed Luu and Phong had defaulted on various monthly maintenance
assessments, repair costs, and other charges owed to the Association. Two months
after the foreclosure sale, Kim Pham sold the property to Ding Ba Nguyen
(Nguyen).

      Upon learning of the sale, Luu and Phong filed suit against the Association
and Kim Pham to set aside the foreclosure sale. Luu and Phong later amended their
petition and brought claims against Nguyen and Hung Pham (the President of the
Association at the time of the foreclosure). Luu and Phong asserted claims for
declaratory judgment relief, the right to title and possession of the property, and to
quiet title. In addition, they asserted claims for fraud, civil conspiracy, and
attorneys’ fees against the Association, Hung Pham, and Kim Pham.

      Almost two years after they filed suit, Luu and Phong non-suited their
claims against the Association. They continued to press their claims against
Nguyen, Hung Pham, and Kim Pham. Nguyen, however, brought the Association
back into the litigation, asserting multiple claims against it related to the sale.
Nguyen also asserted counterclaims against Luu and Phong, and cross-claims
against Kim Pham.

      Nguyen filed traditional and no-evidence motions for partial summary


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judgment against Luu and Phong on their claims for trespass to try title, to quiet
title and declaratory judgment, and on the issue of his status as a bona fide
purchaser. The trial court granted Nguyen’s motion for summary judgment on all
of Luu and Phong’s claims against him. Nguyen later non-suited the remainder of
his counter claims, cross-claims, and third-party claims.

      Meanwhile, though they had non-suited the claims several months earlier,
Luu and Phong re-asserted their claims against the Association. In their Fourth
Amended Petition, Luu and Phong asserted claims against the Association for
wrongful foreclosure, fraud, civil conspiracy, and attorneys’ fees. They also
asserted claims for fraud, civil conspiracy, and attorneys’ fees against Kim Pham
and Hung Pham. Kim Pham and Hung Pham were subsequently non-suited so that,
at the time the motion for partial summary judgment (discussed below) was
granted, only Luu and Phong’s claims against the Association remained pending.

      Luu and Phong moved for traditional summary judgment against the
Association on their claim for wrongful foreclosure. Luu and Phong argued that the
notice of default was defective, the trustee acted without authority in making the
sale, and the trustee sold the property for a grossly inadequate price. The motion
for partial summary judgment did not address, nor move for summary judgment
on, the claims for fraud, civil conspiracy, and attorneys’ fees. The Association filed
no response to the motion for partial summary judgment.

      The trial court granted the motion for partial summary judgment. The text of
the order, titled “Partial Summary Judgment” states as follows:

      On the 7th day of August, 2015, the Court heard Plaintiffs’ Motion for
      Partial Summary Judgment. The parties appeared before the Court for
      the hearing on the Motion. After considering the pleadings, motion,
      response, evidence on file, and arguments of counsel, the court
      Granted the Motion. Thai Xuan Village Condominium Association

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      Inc. filed no response.
      The Court hereby renders judgment for Plaintiffs. Therefore, the court
      orders that Plaintiffs Hien Luu and Trang Phong, recover from Cross-
      Defendant Thai Xuan Village Condominium Association, Inc. the sum
      of $40,000.00, postjudgment interest on the total sum at the annual
      rate of 5% and court costs.
      Plaintiff is allowed such writs and processes as may be necessary in
      the enforcement and collection of this judgment.


      The Association timely filed a motion for new trial. After a hearing, the trial
court denied the motion for new trial and this appeal followed.

                         JURISDICTIONAL ANALYSIS

      Although not raised by either party, we have an obligation to ensure that we
have jurisdiction before proceeding to the merits of the appeal. See M.O. Dental
Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); Royal Indep. Sch.
Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (jurisdiction is fundamental in nature and may not be ignored). “An
appellate court lacks jurisdiction to review an interlocutory order unless a statute
specifically authorizes an exception to the general rule, which is that appeals may
only be taken from final judgments.” Qwest Commc’ns Corp. v. AT&T Corp., 24
S.W.3d 334, 336 (Tex. 2000) (per curiam). In cases like this, in which there is no
conventional trial on the merits and no statutory exception applies, a judgment is
final for purposes of appeal only if: (1) it actually disposes of all claims and parties
before the court, regardless of its language; and (2) the order states with
unmistakable clarity that it is a final judgment. See Guajardo v. Conwell, 46
S.W.3d 862, 863–64 (Tex. 2001) (per curiam); Lehmann v. Har-Con Corp., 39
S.W.3d 191, 192 (Tex. 2001).

      A judgment that does not dispose of all parties and claims is interlocutory

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and will not be considered final for purposes of appeal unless the intent to finally
dispose of the case is unequivocally expressed in the words of the order itself. In re
Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex.
2005) (orig. proceeding); Lehmann, 39 S.W.3d at 200. Such an order would be
erroneous to the extent that it granted more relief than requested, but it would be
considered final for purposes of appeal. See Lehmann, 39 S.W.3d at 200 (a
judgment that grants more relief than requested by a party would not be
interlocutory, but would be subject to reversal). In Lehmann, the Texas Supreme
Court instructed that appellate courts should review the record in the case and the
language of the order to determine whether the order is final. Id. at 205–06.

      A review of the record in this case reveals that the Partial Summary
Judgment does not actually dispose of all claims asserted by Luu and Phong
against the Association. The Fourth Amended Petition, the live pleading at the time
of the Partial Summary Judgment, set forth claims for affirmative relief that have
not yet been adjudicated—the claims for fraud, civil conspiracy, and attorneys’
fees. The record does not contain any orders of severance or nonsuit addressing
those claims. The motion for partial summary judgment filed by Luu and Phong
against the Association does not mention the claims for fraud, civil conspiracy, and
attorneys’ fees. It is premised only on the claim for wrongful foreclosure. As a
result, the Partial Summary Judgment does not dispose of all claims, and is not
final for purposes of appeal unless the language of the order unequivocally
expresses an intent to dispose of the case. See Lehmann, 39 S.W.3d at 200.

      The Partial Summary Judgment order signed by the trial court does contain
some language indicating finality. For example, the order “renders judgment” for
Luu and Phong, awards them post-judgment interest and costs, and states that
processes and writs may issue for enforcement. This language, however, does not

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unequivocally indicate the trial court’s intent to finally dispose of all of Luu and
Phong’s claims. See In Re Burlington Coat Factory, 167 S.W.3d at 830.

      In In re Burlington Coat Factory, the Texas Supreme Court addressed
similar language contained in a default judgment order. Id. at 828. The plaintiff
sued the retail store for actual and exemplary damages arising from injuries
sustained while shopping at the store in McAllen. Id. When Burlington failed to
answer, the trial court entered a default judgment finding Burlington negligent and
awarding actual damages. Id. The order was silent on the exemplary damages
claim. The order did award post-judgment interest and costs, include a Mother
Hubbard clause, and state that the judgment could be enforced through “abstract,
execution and any other process necessary.” Id. at 830. The Texas Supreme Court
first determined that the judgment did not dispose of all claims because it did not
dispose of the claim for exemplary damages based on gross negligence. Id.

      The Court then found that the language providing for costs, post-judgment
interest, and execution of the judgment did not render the judgment final. Id.
Relying on its prior decision in Houston Health Clubs, Inc. v. First Court of
Appeals, 722 S.W.2d 692 (Tex. 1986) (orig. proceeding), the Court found the
language did not unequivocally indicate an intent to finally dispose of the case. In
Re Burlington Coat Factory, 167 S.W.3d at 830. The Court noted that trial courts
sometimes include an allowance for “writs, attachments, executions, and
processes” in interlocutory judgments that are intended to become final only after
other claims are later adjudicated. Id. The Court held “[w]e cannot conclude that
language permitting execution ‘unequivocally express[es]’ finality in the absence
of a judgment that actually disposes of all parties and all claims.” Id.

      Similarly, the judgment in this case does not actually dispose of all claims—
it does not dispose of the fraud, civil conspiracy, or attorneys’ fees claims. It is

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titled “Partial Summary Judgment.” Although it allows for costs and post-judgment
interest, and includes language allowing execution on the judgment, it does not
include language indicating the intent to dispose of all claims. Cf., e.g., Lehmann,
39 S.W.3d at 206 (“This judgment finally disposes of all parties and all claims and
is appealable.”). As in In re Burlington Coat Factory, we cannot conclude that the
language permitting execution on the judgment “unequivocally expresses finality.”
167 S.W.3d at 830. Because the Partial Summary Judgment does not actually
dispose of all of the claims asserted by Luu and Phong against the Association, and
the order does not unequivocally express the trial court’s intent to dispose of all
claims, the Partial Summary Judgment is not an appealable judgment. Id.
Accordingly, we dismiss the appeal for want of jurisdiction because there is not a
final appealable order.

                                 CONCLUSION

      We dismiss the Association’s appeal for lack of jurisdiction.




                                      /s/       Ken Wise
                                                Justice



Panel consists of Justices Busby, Donovan, and Wise.




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