                              Fourth Court of Appeals
                                     San Antonio, Texas

                                         November 22, 2016

                                        No. 04-16-00085-CV

 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, et al.,
                                         Appellants

                                                  v.

                              WHATABURGER OF ALICE, LTD.,
                                      Appellee

                     From the 131st Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2016-CI-01431
                             Honorable Gloria Saldana, Judge Presiding

                                                ORDER
Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Patricia O. Alvarez, Justice

           Whataburger of Alice (“WOA”) filed this suit against numerous parties (collectively

referred to as “Whataburger”) seeking declaratory relief to determine its rights and obligations

under a 1993 Settlement Agreement. The requested declaratory relief consisted of assertions

which the parties describe as “site selection rights and issues”, “entity merger rights and issues”,

“illegal payment issues”, “common law fiduciary duty issues” and “intellectual property issues”.

In its petition, WOA requested an award of attorney fees pursuant to the Texas Declaratory

Judgment Act.
        WOA filed a motion for partial summary judgment on the “site selection rights and

issues”, only. Whataburger responded to this motion for partial summary judgment and filed its

own cross motion for partial summary judgment on the same “site selection rights and issues”.

Whataburger also filed a separate motion for partial summary judgment on all but one of the

remainder of WOA’s declaratory-judgment claims, those pertaining to the “entity merger rights

issues”, “common law fiduciary duty issues” and “intellectual property issues”. WOA responded

to this motion for partial summary judgment, arguing fact issues precluded summary judgment.

Neither party moved for summary judgment on WOA’s request for declaratory judgment on the

“illegal payment issues”.

       The trial court held a hearing on all of the motions for partial summary judgment and

thereafter issued an order granting WOA’s motion for partial summary judgment on the “site

selection rights and issues” and denying Whataburger’s cross motion on the same issues. The

trial court also denied Whataburger’s motion for summary judgment on the “entity merger rights

and issues”, “common law fiduciary duty issues” and “intellectual property issues”.

       WOA filed a motion to sever the “site selection rights and issues” from the remaining

requests for declaratory judgment. In this motion to sever, WOA requested “the attorneys’ fees

associated with the site selection rights and issues also be severed so that once severed, the

reasonableness and necessity of attorneys’ fees associated with the site selection rights and issues

can be determined and a final judgment entered with respect to the site selection rights and issues

and attorneys’ fees associated therewith.” In its prayer for relief, WOA requested “an order

severing this Court’s orders for Partial Summary Judgment, and the recovery of attorneys’ fees

associated therewith….”

       Whataburger filed a response to WOA’s motion to sever and motion to abate the

remaining claims.    In this response, Whataburger stated it did not oppose severance, and

requested “this Court enter an order abating the proceedings in the remaining claims pending
resolution of the appeal of the November 9, 2015 Order in conjunction with granting WOA’s

Motion to Sever.”

          The trial court held a hearing on WOA’s motion to sever and Whataburger’s motion to

abate. On January 26, 2016, the trial court issued an order in which it stated, “the Motion to

Sever should, in all things, be granted, and the Motion to Abate should, in all things, be granted.”

In the same order, the trial court ordered the site selection issues be severed and the remaining

requests for declaratory relief abated. On February 19, 2016, Whataburger filed a notice of

appeal.

          Except in instances not relevant here, we have jurisdiction only over final judgments.

TEX. CIV. PRAC. & REM. CODE. ANN. § 51.012 (West 2015); North E. Indep. Sch. Dist. v.

Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). A final judgment disposes of all parties and issues.

Aldridge, 400 S.W.2d at 895.

          There is no presumption in a summary judgment proceeding that the judgment was

intended to dispose of all parties and issues. New York Underwriters Ins. Co. v. Sanchez, 799

S.W.2d 677, 678 (Tex. 1990). To be a final, appealable summary judgment, the order granting

the motion must dispose of all parties and all issues before the court. Mafrige v. Ross, 866

S.W.2d 590, 591 (Tex. 1993). If a trial court leaves the issue of attorneys’ fees to be determined

in the future, any summary judgment is interlocutory. See Hood v. Amarillo Nat’l Bank, 815

S.W.2d 545, 547 (Tex. 1991) (attorneys’ fees to be determined in future made 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).

          Here, although WOA did not request attorneys’ fees in its motion for partial summary

judgment, it did make this request in its petition for declaratory relief and did specifically request

segregation and subsequent determination of attorneys’ fees associated with the site selection

issues in its motion to sever. The trial court granted WOA’s motion to sever “in all things”;
however, the order did not address the issue of attorneys’ fees, and Whataburger filed a notice of

appeal before a hearing was held to make the determination. Moreover, neither the summary-

judgment or severance order contained a Mother Hubbard clause, WOA never nonsuited its

attorneys’ fees claims associated with the site selection issues, and the trial judge did not sever

the fees issue.

        Therefore, it appears the trial court’s order granting WOA’s motion for partial summary

judgment was not final and was not rendered final by the subsequent order severing the site

selection issues. See New York Underwriters Ins. Co., 799 S.W.2d at 678; State Farm Mutual

Auto. Ins. Co., 981 S.W.2d at 693; Franz v. Klein Indep. Sch. Dist., 01-97-01423-CV, 1999 WL

430053, at *2 (Tex. App.—Houston [1st Dist.] Apr. 1, 1999, no pet.) (mem. op.).

        Because it appears the summary-judgment order appealed is interlocutory and

unappealable, it is therefore ORDERED that appellant show cause in writing on or before

December 5, 2016 why this appeal should not be abated pending determination of the attorneys’

fees issue or dismissed for lack of jurisdiction. See Franz, 1999 WL 430053, at *2. Appellee

shall have ten days from the date Appellants file their show cause brief to file a response.

        Pending determination of this Court’s jurisdiction over this appeal, the Oral Argument

scheduled for December 6, 2016 is cancelled.


        It is so ORDERED on November 22, 2016.
                                                             PER CURIAM




ATTESTED TO: _____________________________
             Keith E. Hottle
            Clerk of Court
