Justices: No signed final order, no grounds for appeal

David Yates May 6, 2009, 9:57am

Mariner's Cove on Port Arthur's Pleasure Island

In order to protect its right to appeal four recent court orders, the city of Port Arthur asked Beaumont justices to determine whether or not the orders constituted a final judgment in a case involving a real estate development dispute.

However, on April 23 the Texas Ninth District Court of Appeals dismissed the city's claim due to lack of jurisdiction.

"No final judgment has been signed; accordingly, this Court lacks jurisdiction over the appeal," states the appellate court's per curiam opinion. "The appeal is therefore dismissed."

In March 2006, William Worsham filed an injunction against Port Arthur, enjoining the city from any further development in the Mariner's Cove subdivision on Pleasure Island until the city agreed to construct a canal.

According to court documents, Worsham purchased a tract of land from Mariner's Cove Inc. in 1989. Several years later, covenants were formed between the residents and proprietors of the marina colony and one of the subdivision's tracts, Tract F, was subdivided into 12 waterfront lots.

"(The city) is attempting to replat Tract F to allow for 12 lots to be sold to the public when, in fact, it has failed and refused to comply with its obligation to first undertake construction of a canal as required by the covenant," court papers say.

The Pleasure Island Commission and Pleasure Island Mariner's Cove Homeowners Association Inc. were later added as third parties to the suit.

On Jan. 19, Judge Gary Sanderson of the 60th Judicial District entered four separate orders in the case, the first of which partially granted a motion for summary judgment by the Pleasure Island Mariner's Cove Homeowners Association.

The second order dismisses with prejudice all claims filed by Pleasure Island Commission against the homeowner's association and stated that each party would be responsible for its own court costs and attorney's fees.

The third order granted dismissal with prejudice against the third-party defendants.

The final order was an interim order between Worsham and the Pleasure Island Commission in which the commission agreed to pay Worsham's court costs.

A month following the orders, Port Arthur appealed on Feb. 13 and asked for a jurisdictional determination "because it does not want any of the parties to this litigation to incur unnecessary costs."

The city also asked the court to determine if the judge's orders constituted a final judgment.

Two weeks later, the Ninth Court of Appeals questioned its jurisdiction over the appeal and instructed the parties to file written responses.

Worsham, one of the appellees, filed a response in which he contends no final order or appealable interlocutory order has been signed.

"A judgment is not final '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,'" the opinion states.

"The trial court held a hearing at which no evidence was taken, but has not conducted a conventional trial on the merits. Worsham filed a suit for declaratory judgment and injunctive relief against the city of Port Arthur and the Pleasure Island Commission.

"The record reflects Worsham resolved his claims against the Commission, other than his claim for attorneys' fees. The order does not contain clear and unequivocal language of finality. No final judgment has been signed. The appeal is therefore dismissed."

Worsham was represented in part by attorney Rick Lewis.

The city was represented in party by attorney Frank Calvert of Calvert Eaves Clarke & Stelly.

Trial case No. B176-606
Appeals case No. 09-09-000560CV

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