1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO

. 09

- 1 4

- 00 233

- C V



### ____________________ JC PROJECT MANAGEMENT SERVICES, INC., JOHN WARD , AND NANCY WARD , Appellant s

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 , Appellee s

_______________________________________________________ ______________ On A ppeal 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, 201 4
, 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 of2 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 , t he A ppellants agree that CPPOA ’s motion for partial summary
judgment did not address all of the claims asse rted in A ppellants’ 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 o rder 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

. The n , on March 7, 2014 , the trial court granted CPPOA’s
motion for partial summary judgment dismissing the A ppellants’ 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

.3 Neither the A ppellants nor CPPOA argue that the counterclaim was subsumed into
any of the respective orders or judgment s, 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 t here 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, w e grant the motion to dismiss and dismiss the appeal for
lack of jurisdiction.

APPEAL DISMIS S ED.

________________________________ LEANNE JOHNSON Justice

Submitted on July 9, 2014 Opinion Delivered July 10, 2014
Before Kreger, Horton, and Johnson, JJ.