587 S.W.3d 179
Tex. App.2019Background
- Plaintiff Christopher Durham sued multiple defendants (Austin Budget Signs, Barbara and Jules Accardi, STN La Fuente Restaurant, LLC, City of Austin/Austin Energy) asserting negligence, gross negligence, negligence per se, punitive damages, and veil-piercing/alter-ego theories.
- La Fuente obtained a traditional summary judgment that explicitly disposed of all claims against it and was severed with Lehmann/Har‑Con final-judgment language, producing an appealable judgment.
- The City of Austin/Austin Energy obtained a summary judgment dismissing Durham’s claims; the record lacks a clear severance order for those defendants.
- The Accardis moved for traditional and no-evidence summary judgment but did not expressly move for summary judgment on Durham’s negligence-per-se claims; the October 20, 2016 order unambiguously said Durham take nothing, but a later June 7, 2017 order simply granted the motions without restating that Durham take nothing.
- The trial court signed a December 14, 2017 severance order stating the Accardis’ claims were severed “so that the summary judgment . . . may become final,” but the order did not use the Lehmann/Har‑Con final-judgment formula. Both parties and the court treated the result as a final, appealable judgment.
- Justice Spain (dissent) argues the Accardis never sought summary judgment on negligence per se, the later orders are ambiguous, the severance language is insufficient, and therefore no final judgment existed — depriving the appellate court of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a summary judgment that did not expressly move for relief on negligence-per-se can be treated as final by applying other arguments to that claim | Durham: Accardis did not request summary judgment on negligence-per-se; court may not grant more relief than requested; thus judgment is interlocutory | Accardis: the substance of their arguments supports dismissal and subsequent severance makes the judgment final; parties treated it as final | Dissent (Spain): No — court cannot render more summary-judgment relief than requested; applying arguments to unruled claims cannot manufacture finality; jurisdiction lacking |
| Whether the June 7, 2017 order that granted the Accardis’ motion but did not restate "take nothing" disposed of all claims | Durham: June 7 order is ambiguous and does not dispose of negligence-per-se; interlocutory | Accardis: earlier October 20 order and later severance show intent to finally dispose; combined record yields finality | Dissent: June 7 is insufficiently clear; ambiguity means no final judgment on its face |
| Whether the December 14, 2017 severance order cured defects and created a final, appealable judgment | Durham: severance language (“so that the summary judgment . . . may become final”) is inadequate under Lehmann/Har‑Con; cannot cure lack of finality | Accardis: severance was intended to make the summary judgment final; parties accepted it as final | Dissent: Severance did not use required Lehmann language and cannot confer jurisdiction when finality was lacking; subject-matter jurisdiction cannot be waived |
Key Cases Cited
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (no presumption of finality for summary judgments; cannot grant relief beyond that requested)
- Lehmann v. Har‑Con Corp., 39 S.W.3d 191 (Tex. 2001) (requirements for severance and language to create a final, appealable judgment)
- G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) (discussing when summary-judgment order may grant more relief than requested and consequences)
- Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692 (Tex. 1986) (per curiam) (no presumption of finality for summary judgments)
- Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995) (summary judgments that do not dispose of all parties/claims are interlocutory)
- Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (subject-matter jurisdiction cannot be waived)
- N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893 (Tex. 1966) (explaining "Mother Hubbard" clauses and their effect)