Harvey Williams v. Cathy Shaw

• Court: Court of Appeals of Texas
• Decided: December 13, 2018
• Docket: 01-17-00768-CV
• Status: Published

Opinion

Opinion issued December 13, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00768-CV ——————————— HARVEY WILLIAMS, Appellant V. CATHY SHAW, Appellee

On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 16-12-24061

MEMORANDUM OPINION

Harvey Williams appeals from the trial court’s summary-judgment order in

favor of Cathy Shaw on her claims for conversion and breach of contract and her

declaratory-judgment action. However, the trial court’s summary-judgment order

is not a final judgment. It does not resolve Williams’s counterclaims. And it does not contain finality language or any other clear indication that the trial court

intended the order to completely dispose of all parties and all claims. Because the

trial court’s summary-judgment order is not final, and because Williams has not

shown that the order is otherwise appealable, we dismiss the appeal for lack of

jurisdiction.

Background

This case arises from the breach of a contract for the sale of real property. In

2009, Shaw and Williams entered into a contract-for-deed by which Shaw agreed

to sell to Williams real property located in Hempstead, Texas. Under the contract,

Williams agreed to make an initial down payment and to satisfy the remaining

balance through monthly installments. Shaw agreed to allow Williams to possess

the property and to transfer title to him by executing a general warranty deed after

Williams had paid for the property in full.

In December 2016, Shaw filed her original petition, alleging that Williams

had stopped making the monthly installments, breached other provisions of the

contract, and converted funds she had provided him to improve the property. Shaw

asserted claims for conversion, breach of contract, and negligence and sought

money damages and a declaratory judgment.

In August 2017, Shaw moved for summary judgment, arguing that she was

entitled as a matter of law to damages for the converted funds, damages for rent for

2 the period during which Williams possessed the property without paying for it, and

a declaration that title to the property was vested in her.

About a month after Shaw filed her summary-judgment motion, Williams

filed a counterclaim. He asserted claims for fraud, fraudulent misrepresentation,

unjust enrichment, and various statutory violations. He also sought a declaratory

judgment.

One week later, the trial court held a hearing on Shaw’s summary-judgment

motion. At the end of the hearing, the trial court granted Shaw’s motion. In its

order, the trial court (1) awarded Shaw damages for the converted funds and for

lost rent, (2) declared that the contract-for-deed was null and void, that full title to

the property was vested in Shaw, and that Shaw was entitled to immediate

possession of the property, and (3) ordered that Williams vacate the property

within a month. The summary-judgment order did not dismiss or otherwise dispose

of Williams’s counterclaims. Nor did it state that it was final and appealable or

otherwise contain finality language.

Williams appeals.

Lack of Jurisdiction

Absent a statute allowing an interlocutory appeal, a party may only appeal

from a final judgment. See TEX. CIV. PRAC. & REM. CODE §§ 51.012, .014;

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When, as here,

3 “there 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, 39 S.W.3d at 205. “If a party appeals from a

summary judgment that disposes of some but not all claims between the parties,

the appellate court must dismiss the appeal for lack of jurisdiction.” Duke v. Am.

W. Steel, LLC, 526 S.W.3d 814, 816 (Tex. App.—Houston [1st Dist.] 2017, no

pet.).

The trial court’s summary-judgment order is not a final judgment. It does not

actually dispose of every pending claim and party or clearly and unequivocally

state that it finally disposes of all claims and all parties. See Lehmann, 39 S.W.3d

at 205. Williams’s counterclaims against Shaw are still pending.

A party seeking review of a partial summary judgment generally must show

that the interlocutory order is appealable under Section 51.014 of the Civil Practice

and Remedies Code. See TEX. CIV. PRAC. & REM. CODE § 51.014(a) (permitting,

under certain circumstances, interlocutory appeals from orders disposing of

specified claims and issues). Williams has not argued or otherwise demonstrated

that Section 51.014 applies. Nor did he respond to our notice of intent to dismiss

for lack of jurisdiction, which sought an explanation of why we have jurisdiction in

this case.

4 Because the record shows that Williams’s counterclaims against Shaw

remain pending in the trial court, the trial court’s summary-judgment order is not

final and appealable. Therefore, we dismiss the appeal for lack of jurisdiction. See

TEX. R. APP. P. 42.3(a).

PER CURIAM Panel consists of Justices Keyes, Massengale, and Brown.