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

M E M O R A N D U M O P I N I O N

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 
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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 CrossDefendant 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.