                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-13-00331-CV
                             _________________

                          MIKE O’BRIEN, Appellant

                                        V.

  CORINTHIAN POINT YACHT AND RACQUET CLUB, INC., Appellee
________________________________________________________________________

                    On Appeal from the 284th District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-02-01368 CV
________________________________________________________________________

                          MEMORANDUM OPINION

      Appellant Mike O’Brien appeals from a summary judgment order entered on

June 25, 2013 in favor of Corinthian Point Yacht and Racquet Club, Inc.

(“Corinthian Point”). We questioned our jurisdiction over this appeal and requested

further briefing from both parties. See Tex. R. App. P. 42.3(a). Appellate

jurisdiction is never presumed; if the record does not affirmatively demonstrate

appellate jurisdiction is proper, the appeal must be dismissed. Brashear v. Victoria

Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex. App.—Dallas 2009, no
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pet.). Our review of the record indicates that the summary judgment order is

interlocutory and cannot properly dispose of all issues as to all parties by the cross-

motions for summary judgment. Therefore, we must dismiss this appeal for want

of jurisdiction. See Tex. R. App. P. 42.3(a).

                                Procedural History

      O’Brien filed suit against Corinthian Point in February 2013. O’Brien’s live

pleading sought declaratory relief and included a claim for attorney’s fees pursuant

to section 37.009 of the Texas Civil Practice and Remedies Code. See generally

Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2015) (stating that in a

declaratory judgment proceeding “the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just”). Corinthian Point answered

and filed a counterclaim wherein Corinthian Point sought declaratory relief,

damages based on O’Brien’s alleged deed restriction violations, attorney’s fees and

court costs pursuant to section 37.009 of the Texas Civil Practice and Remedies

Code, and attorney’s fees pursuant to Texas Property Code sections 5.006(a) and

209.008. See id.; Tex. Prop. Code Ann. §§ 5.006(a) (“In an action based on breach

of a restrictive covenant pertaining to real property, the court shall allow to a

prevailing party who asserted the action reasonable attorney’s fees in addition to

the party’s costs and claim.”), 209.008(a) (providing that when proper notice is

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given, a property owners’ association may collect reimbursement of reasonable

attorney’s fees and other reasonable costs incurred by the association for enforcing

restrictions, the bylaws, or rules of the association) (West 2014).

      O’Brien sought summary judgment on his claims for declaratory relief and

for attorney’s fees. Corinthian Point also moved for summary judgment seeking

judgment on O’Brien’s claims, as well as judgment on Corinthian Point’s claims

for declaratory relief, damages for O’Brien’s deed violations, and for attorney’s

fees under section 37.009 of the Texas Civil Practice and Remedies Code.

Corinthian Point did not move for summary judgment on its claims for attorney’s

fees pursuant to Texas Property Code sections 5.006(a) and 209.008.


      The trial court denied O’Brien’s motion and granted Corinthian Point’s

motion in part. The trial court’s June 25 order granting Corinthian Point’s motion

is titled, “ORDER ON DEFENDANT’S TRADITIONAL MOTION FOR

SUMMARY JUDGMENT[.]” The order states that O’Brien is in violation of

Corinthian Point’s declarations, deed restrictions, and the mandates of Corinthian

Point’s Architectural Control Committee. The order also states that “[O’Brien]

must properly install his fence in accordance with the conditional approval granted

by [Corinthian Point’s] Architectural Control Committee to provide unobstructed

access for maintenance of the Common Area[.]” The trial court struck through the
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language in the order granting Corinthian Point’s claim for monetary damages.

The trial court also struck through the following statement in the order: “All of

Mike O’Brien’s claims and causes of action are hereby dismissed with prejudice as

to Corinthian Point Yacht and Racquet Club, Inc.” In its place, the trial judge hand

wrote “All relief not expressly granted herein is DENIED.” The order does not

expressly reference the parties’ claims for attorney’s fees or court costs. The order

does not contain the word “final” or any variation thereof.

                              Appellate Jurisdiction

      We are required to review issues affecting jurisdiction. See M.O. Dental Lab

v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). Generally, an appeal may only be taken

from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.

2001). “A judgment is final for purposes of appeal if it disposes of all pending

parties and claims in the record, except as necessary to carry out the decree.” Id.

If, as in this case, there has not been a conventional trial on the merits, we do not

presume that a judgment is final. See id. at 199-200. The inclusion of a “Mother

Hubbard” clause—i.e., a statement that “‘all relief not granted is denied’, or

essentially those words”—in a judgment rendered without a conventional trial does

not render the judgment final for purposes of appeal. Id. at 203-04. Because the

standard Mother Hubbard clause is ambiguous, it cannot be taken as an indication

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of finality in any order not issued after a conventional trial. Id. at 204, 206. “[A]n

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.” Id. at 205. There must be a “clear

indication that the trial court intended the order to completely dispose of the entire

case.” Id. The appellate court may look at the record to determine whether an order

disposes of all pending claims and parties. Id. at 205-06.

      The June 25 order granting Corinthian Point’s motion does not appear to be

a final judgment under Lehmann. Corinthian Point specifically requested attorney’s

fees under section 37.009 in its motion for summary judgment, but it did not seek

summary judgment on its claims for attorney’s fees under the Texas Property

Code. Although the June 25 order contains a Mother Hubbard clause, the clause,

on its face, does not implicitly dispose of claims not expressly mentioned in the

order, including all of Corinthian Point’s claims for attorney’s fees. See Farm

Bureau Cty. Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 164 (Tex. 2015). Moreover,

even if we could presume the trial court may have considered an award of

attorney’s fees under the Declaratory Judgment Act, there is no indication that the

trial court contemplated Corinthian Point’s other two claims for attorney’s fees



                                          5
when it signed the June 25 order as those claims were not included in Corinthian

Point’s motion for summary judgment.

      Additionally, by striking out the language in the June 25 order awarding

damages to Corinthian Point, the trial court denied Corinthian Point’s summary

judgment as to damages under section 202.004(c) of the Texas Property Code.

“When a trial court denies summary judgment, it denies only summary judgment

relief; it does not adjudicate the underlying claim.” Wasserberg v. RES-TX One,

LLC, No. 14-13-00674-CV, 2014 WL 6922545, at * 4 (Tex. App.—Houston [14th

Dist.] Dec. 9, 2014, pet. filed). Accordingly, by striking the award of damages

from the order granting summary judgment, the trial court neither granted nor

denied damages. See id. Thus, while the parties suggested that this Court abate the

appeal and remand the matter to the trial court, based on the cross-motions for

summary judgment before the trial court, the trial court is unable to render a full

and final judgment in this case.

      The fact that the June 25 order contained a Mother Hubbard clause does not

make the order a final judgment. See Lehmann, 39 S.W.3d at 203-04; see also In re

Daredia, 317 S.W.3d 247, 248 (Tex. 2010). We find no clear indication in the

record that the trial court intended to dispose of all remaining issues when it

included the Mother Hubbard clause in the June 25 order. After examining the

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express language of the June 25 order and determining that it does not dispose of

all claims against all parties, we conclude the June 25 order is not a final order. See

Lehmann, 39 S.W.3d at 200; see also McNally v. Guevara, 52 S.W.3d 195, 196

(Tex. 2001).

      Because the order in the underlying case is not final, and an interlocutory

appeal of the order is not authorized by statute, we lack jurisdiction over this

appeal. Accordingly, we dismiss the appeal for lack of jurisdiction. See Tex. R.

App. P. 42.3(a).


      DISMISSED FOR WANT OF JURISDICTION.




                                              ______________________________
                                                     CHARLES KREGER
                                                          Justice

Submitted on October 15, 2014
Opinion Delivered August 27, 2015

Before Kreger, Horton, and Johnson, JJ.




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