Whataburger, Inc., CA Development LLC, CA Real Estate LLC, Cinco Aguilas LLC, Tres Aguilas Enterprises LLC, Tres Aguilas Management LLC, Whataburger International LLC, Whataburger Real Estate LLC, Whataburger Restaurants LLC v. Whataburger of Alice, LTD.
04-16-00085-CV
| Tex. App. | Nov 22, 2016Background
- Whataburger of Alice (WOA) sued multiple Whataburger entities seeking declaratory relief under a 1993 Settlement Agreement on several topics, including site selection, entity mergers, alleged illegal payments, fiduciary duties, and IP; WOA sought attorney fees under the Texas Declaratory Judgment Act.
- WOA moved for partial summary judgment solely on the “site selection” issues; Whataburger filed a cross-motion on the same issues and a separate summary-judgment motion as to most remaining claims (merger, fiduciary duty, IP).
- The trial court granted WOA’s partial summary judgment on site selection, denied Whataburger’s cross-motion, and denied Whataburger’s separate motion on the other claims.
- WOA moved to sever the site-selection claims and requested severance of attorney-fee issues related to those claims so fees could be determined and a final judgment entered; Whataburger said it did not oppose severance and sought abatement of the remaining claims pending appeal.
- The trial court ordered the site-selection issues severed and the remaining claims abated; Whataburger filed a notice of appeal before any hearing on fees.
- The appellate court questioned whether the partial summary judgment was final because attorney fees were not resolved or severed, and directed appellant to show cause why the appeal should not be abated or dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument (WOA) | Defendant's Argument (Whataburger) | Held |
|---|---|---|---|
| Whether the partial summary judgment on site selection was a final, appealable judgment | The severance order (granting severance “in all things”) and abatement made the site-selection judgment final and appealable | The judgment is final as severed and appealable | Court: Not clearly final because attorneys’ fees related to the severed claims were not addressed; summary judgment appears interlocutory |
| Whether severance order rendered the fees issue resolved/severed | WOA asked fees associated with site-selection be severed for later determination, implying finality | Whataburger did not oppose severance and asked for abatement of remaining claims pending appeal | Court: Although court severed the site-selection issues, it did not resolve or expressly sever the attorney-fees issue; fees remain outstanding |
| Whether leaving attorney fees to be determined later renders summary judgment interlocutory | WOA contended fees could be determined after severance to permit final judgment | Whataburger did not directly contest that fees remain to be determined but proceeded to appeal | Court: Cites precedent that reserving fees for later makes the judgment interlocutory and unappealable unless fees are resolved/severed/nonsuited |
| Whether appeal should be abated or dismissed for lack of jurisdiction | WOA implied severance should allow appeal to proceed | Whataburger appealed and requested action | Court: Orders appellant to show cause why appeal should not be abated pending determination of the fees issue or dismissed for lack of jurisdiction; oral argument canceled pending jurisdictional determination |
Key Cases Cited
- North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893 (Tex. 1966) (final judgment must dispose of all parties and issues)
- New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677 (Tex. 1990) (no presumption a summary judgment was intended to dispose of all issues)
- Mafrige v. Ross, 866 S.W.2d 590 (Tex. 1993) (order granting summary judgment must dispose of all parties and issues to be final and appealable)
- Hood v. Amarillo Nat’l Bank, 815 S.W.2d 545 (Tex. 1991) (reserving attorneys’ fees for future determination makes summary judgment interlocutory)
- State Farm Mut. Auto. Ins. Co. v. Leeds, 981 S.W.2d 693 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (trial court’s failure to address attorneys’ fees rendered summary judgment interlocutory)