AFFIRM; and Opinion Filed November 19, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-01252-CV

                            NATHAN WEILBACHER, Appellant
                                        V.
                               MELODIE CRAFT, Appellee

                      On Appeal from the 191st Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 13-06130-J

                            MEMORANDUM OPINION
                        Before Justices O’Neill, Lang-Miers, and Brown
                                  Opinion by Justice O’Neill
        Appellee Melodie Craft is an attorney. She represented a party opposing appellant

Nathan Weilbacher in litigation. Weilbacher sued Craft for fraud after her client allegedly

breached an agreement to settle the litigation. The trial court granted Craft’s motions for

summary judgment and to sever the claims against her from the remaining claims in the lawsuit.

In two issues, Weilbacher alleges the trial court erred in both rulings. Because we conclude that

both summary judgment and severance were proper, we affirm the trial court’s judgment. We

issue this memorandum opinion because all matters are settled in law. See TEX. R. APP. P. 47.4.

                                         BACKGROUND

       Weilbacher alleges that Kelly Jones, one of the defendants in the trial court, induced him

to go to work for Digital Discovery f/k/a Digital Works LLC (“DDC”) with promises of a salary,

ownership in the company, and a share of its profits.       When DDC and Jones terminated
Weilbacher’s employment “unjustifiably without providing ownership and profits from DDC,”

Weilbacher filed suit. Craft represented DDC and Jones in negotiations with Weilbacher and his

attorney Mark Ticer to settle the lawsuit. Although Craft sent Ticer a settlement agreement to

which Weilbacher agreed and signed, neither Jones nor DDC ever signed the agreement. When

Jones and DDC 1 failed to make the payments required by the agreement, Weilbacher amended

his petition to plead claims for breach of the settlement agreement and fraud. After deposing

Jones on these claims, Weilbacher amended his petition to add Craft as a defendant. Craft filed a

traditional and no-evidence motion for summary judgment on Weilbacher’s claims against her. 2

The trial court granted Craft’s motion. Craft then moved to sever Weilbacher’s claims against

her from the claims still pending against Jones. The trial court also granted this motion, and

severed Weilbacher’s claims against Craft under a separate cause number. This appeal followed.

                                                    STANDARDS OF REVIEW

          We review the trial court’s decision to grant a severance for abuse of discretion. Guar.

Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). A trial court

abuses its discretion when it acts without reference to any guiding rules or principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

          We review the trial court’s summary judgment rulings de novo.                                           Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A no-evidence motion for

summary judgment asserts that there is no evidence of one or more essential elements of a claim

upon which the opposing party would have the burden of proof at trial.                                                See Espalin v.

Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 682 (Tex. App.—Dallas 2000, no pet.). A no-


     1
       After DDC filed for bankruptcy protection, litigation against it was stayed, and Weilbacher’s claims against Jones were severed into a
separate lawsuit. DDC was not a party to the summary judgment proceedings from which this appeal arises.
     2
       Weilbacher explains that at the time of summary judgment, his only pending claims against Craft were for fraud and negligent
misrepresentation. His appeal is limited to his fraud claim.



                                                                   –2–
evidence summary judgment is essentially a pretrial directed verdict to which we apply the same

legal sufficiency standard of review. Gen. Mills Rests., Inc. v. Texas Wings, Inc., 12 S.W.3d 827,

832–33 (Tex. App.—Dallas 2000, no pet.). A no-evidence summary judgment is properly

granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a

genuine issue of material fact on the challenged elements. See King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 750–51 (Tex. 2003). In determining whether the nonmovant has met its

burden, we review the evidence in the light most favorable to the nonmovant and resolve all

doubts in its favor. See Gen. Mills Rests., Inc., 12 S.W.3d at 832–33.

       To prevail on a traditional motion for summary judgment, a defendant must either

disprove at least one element of each of the plaintiff’s theories of recovery or plead and

conclusively establish each element of an affirmative defense, thereby rebutting the plaintiff’s

cause of action. See Espalin, 27 S.W.3d at 682. A matter is conclusively established if ordinary

minds could not differ as to the conclusion to be drawn from the evidence. Id. Once the

defendant establishes its right to summary judgment as a matter of law, the burden shifts to the

plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary

judgment. Id. Where, as here, the summary judgment does not state the grounds on which it was

granted, the nonmovant must show on appeal that each independent ground alleged is

insufficient to support the summary judgment granted. Id. If a movant does not show its

entitlement to judgment as a matter of law, we must remand the case to the trial court for further

proceedings. Id.




                                                –3–
                                           DISCUSSION

       1. Summary judgment

       In his second issue, Weilbacher contends the trial court erred by granting summary

judgment on his fraud claims against Craft. He contends that he raised a genuine issue of

material fact on the elements of fraud: (1) Craft made a material misrepresentation that was

false; (2) Craft knew the representation was false, or made it recklessly as a positive assertion

without any knowledge of its truth; (3) Craft intended to induce Weilbacher to act on the

representation; and (4) Weilbacher justifiably relied on the representation and suffered injury.

See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). He

argues that although Craft is immune from some claims, she can be held liable for fraud that is

not part of the discharge of her duties to her client. See Alpert v. Crain, Caton & James, P.C.,

178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (cause of action could

exist against attorney who knowingly commits fraudulent act outside scope of legal

representation of client).

       Weilbacher argues that the summary judgment evidence “establishes that Craft

represented she had authority to enter into a settlement agreement and a settlement agreement

had been reached.”      He relies on Ticer’s summary judgment affidavit and the deposition

testimony of both Craft and Jones. Ticer testified:

               At no time did Craft reveal or state that she had no authority to
               enter into a settlement agreement on behalf of her client, Jones. At
               all times, I relied on Craft’s authority to act on behalf of Jones.
               My client and I relied on Craft’s representations and conduct in
               agreement to a settlement with Jones and DDC. Craft had plenty
               of opportunity in her communications with me to advise that she
               had no authority or limited authority to enter into a settlement
               agreement on behalf of her client Jones.

       In her deposition, Craft testified in response to several questions that “I had authority to

send the draft” settlement agreement to Ticer. Jones, however, testified that he decided he
                                               –4–
“could not do a personal guaranty” as part of a settlement; he intended any settlement funds must

be paid by DDC. He testified that Craft did not have authority to enter into a settlement that

included a personal guaranty:

               Q:     Did Melodie Craft take any actions in her representation of
               you that were not authorized?

               A.      For example?

               Q:      Anything.

               A:     Well, ultimately the settlement agreement, including the
               personal guaranty.

       Craft cited to and attached Ticer’s affidavit to her motion for summary judgment. In

addition to the statements about reliance quoted above, Ticer testified:

               [I]t appears that Jones had no intent of honoring any settlement
               agreement and merely used the time to delay so he could sell DDC
               to another entity. Jones, through Craft, represented that the matter
               was settled even going so far as to get Weilbacher to execute and
               forward a settlement agreement. The representation of settlement
               was false according to Jones. The representation of a settlement
               was reasonably relied upon by Weilbacher, i.e., he signed the
               settlement agreement as requested. Jones intended for Weilbacher
               to act on the representation of a settlement by asking Weilbacher to
               sign the settlement agreement. Weilbacher suffered damages to
               the tune of a $160,000 settlement.

       Weilbacher also relies on several letters and e-mails included in the summary judgment

record. The record includes a letter dated September 21, 2009, to the trial court from a mediator.

The mediator reported that the parties attended a mediation on September 15, 2009, and “the

mediation has been successful and the litigation has been fully resolved by mutual agreement of

all of the parties.” The mediator also stated that “[c]ounsel are in the process of drafting formal

settlement documents.”     The mediator’s letter does not disclose any specific terms of the

settlement. The record does not include any memorandum of settlement or any other writing

reflecting the terms of the agreement reached at the mediation.

                                                –5–
The following e-mail exchanges and correspondence are included in the record:

   •   September 16, 2009, e-mail from Craft to Ticer “to confirm agreement” to ten
       “settlement terms we discussed.” Item one provided that a total payment of
       $160,000 would be made to Weilbacher in installments. Item seven stated, “Mr.
       Jones will personally guarantee the settlement payments.” The message
       concluded, “If you believe the above is not accurate please advise immediately.”
       An hour later, Craft sent a second message: “Enclosed is a settlement agreement
       for this matter. Look forward to hearing back [from] you.” A few minutes later,
       Ticer responded: “I agree with the following additions . . .”, suggesting additional
       language for four of the paragraphs.

   •   Fax cover sheet from Ticer to Craft dated September 21, 2009, attaching a total of
       ten pages and bearing the message, “Revisions.”

   •   September 21 e-mail from Craft to Ticer stating that she cannot read Ticer’s
       handwritten requested revisions, requesting that he send a redlined version or set
       up a call to discuss his changes; Ticer then sends an e-mail to “Delly Davis”
       stating “please set up”;

   •   September 22 e-mail from Davis to Ticer, reporting:

              I spoke with Melody [sic] and read all your corrections to
              her. She will redline your corrections in the document,
              send it to her client for review, and will get back with you.
              Where you indicated “All consideration is not listed:
              1. Guarantee and 2. Positive reference and letter,” Melody
              [sic] says it is in the agreement. She says to see Paragraph
              2.3 for Guarantee and see Paragraph 7.2 for Positive
              reference and letter.”

   •   September 25 e-mail from Craft to Ticer, again sending a draft settlement
       agreement that included Jones’s personal guaranty. The e-mail reads, “Enclosed
       please find updated agreement.”

   •   October 2 e-mail from Craft to Ticer, sending a draft settlement agreement that
       included Jones’s personal guaranty. The e-mail reads in its entirety, “Mark,
       Please see the enclosed. Melodie Craft.”

   •   October 12 e-mail from Craft to Ticer, attaching a settlement agreement. The
       e-mail states in its entirety, “Please have the enclosed executed and then return to
       me.” The attached settlement agreement was not signed by Jones or on behalf of
       DDC.

   •   October 19, 2009, letter from Ticer to Craft, returning the settlement agreement
       signed by Weilbacher, and requesting that Craft provide “a conformed copy once
       executed by your clients.” Paragraph 2.3 of the settlement agreement signed by

                                       –6–
                     Weilbacher provided Jones’s personal guarantee of the entire gross settlement
                     amount.

          In her motion for summary judgment, Craft contended there was no misrepresentation of

a material fact, no reasonable reliance, and no damages. She argued that an attorney’s statements

communicating her client’s negotiating position are not statements of material fact. She also

contended that a third party’s reliance on an attorney’s representation is not justified when the

representation is made in an adversarial context. And she argued that Weilbacher could not

recover benefit of the bargain damages from her. In response, Weilbacher contended, among

other arguments, that a settlement existed and “Craft’s communications do more than suggest

negotiation; they direct and at worst, reasonably infer a settlement exists between Jones, DDC,

and Weilbacher.” In reply, Craft also contended that any reliance by Weilbacher was not

reasonable because the alleged settlement agreement was not signed and was not enforceable

under Rule 11 of the Texas Rules of Civil Procedure. The trial court granted Craft’s motion

without stating the grounds.

          We conclude that Weilbacher did not raise a genuine issue of material fact on the

justifiable reliance element of his fraud claim against Craft. In McCamish, Martin, Brown &

Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999), the court held that a

nonclient could bring a claim against an attorney for negligent misrepresentation. 3 The court

explained, however, that the nonclient must prove justifiable reliance on a misrepresentation of

material fact. Id. at 794. “Thus, not every statement made by an attorney to a nonclient is

actionable . . . . For example, an attorney’s statements communicating her client’s negotiating

position are not statements of material fact.” Id. “[C]ourts have generally acknowledged that a



     3
       Atlhough McCamish is a negligent misrepresentation case, and Weilbacher on appeal asserts only a fraud claim, both fraud and negligent
misrepresentation require that the plaintiff show actual and justifiable reliance. Grant Thorton LLP v. Prospect High Income Fund, 314 S.W.3d
913, 923 (Tex. 2010). McCamish’s discussion of reliance is therefore applicable here.



                                                                   –7–
third party’s reliance on an attorney’s representation is not justified when the representation

takes place in an adversarial context.” Blankinship v. Brown, 399 S.W.3d 303, 309 (Tex. App.—

Dallas 2013, pet. denied); see also Chu v. Hong, 249 S.W.3d 441, 446 n.19 (Tex. 2008) (stating

the court in McCamish noted that “fraud actions cannot be brought against an opposing attorney

in litigation as reliance in those circumstances is unreasonable”).

       Weilbacher contends Craft misrepresented she had authority to enter into a settlement

agreement and that a settlement had been reached. He contends that the statements went beyond

“communicating her client’s negotiating position” to a misrepresentation that settlement had

actually been reached.     Assuming these statements were made, reliance on them was not

reasonable as a matter of law.      The parties remained in an adversarial relationship.      The

agreement Craft sent to Ticer was not signed by her clients, and Craft made no express

representation that her clients had approved or would sign it. In Valls v. Johanson & Fairless,

L.L.P., 314 S.W.3d 624, 635–36 (Tex. App.—Houston [14th Dist.] 2010, no pet.), the court

affirmed a summary judgment on a misrepresentation claim against opposing counsel arising out

of pre-suit settlement negotiations. The court concluded there was no reliance as a matter of law:

               [T]he evidence does not suggest anything other than an adversarial
               relationship between the parties at the time the alleged
               misrepresentation took place. When the Settlement Agreement was
               prepared, the parties were in the midst of negotiations to prevent
               the onset of litigation between them. Courts have repeatedly held a
               party may not justifiably rely on statements made by opposing
               counsel during settlement negotiations. . . . Here, the negotiation
               process involved an arms-length transaction in which both sides
               were represented and advised by their own counsel.

Valls, 314 S.W.3d at 635–36 (citations omitted); see also Ortiz v. Collins, 203 S.W.3d 414, 422

(Tex. App.—Houston [14th Dist.] 2006, no pet.) (generally, reliance on representations made in

business or commercial transaction not justified when representation takes place in adversarial

context such as litigation). There is no evidence that the parties here had anything other than an

                                                –8–
adversarial relationship throughout the course of the litigation between Weilbacher, Jones, and

DDC.

       Weilbacher argues it was reasonable to rely on Craft’s statements because of the

presumption that attorneys have authority to act on behalf of their clients. The cases on which he

relies, however, are consistent with both McCamish and Valls. In Breceda v. Whi, 187 S.W.3d

148, 152–53 (Tex. App.—El Paso 2006, no pet.), the court concluded that a Rule 11 settlement

agreement was enforceable when it was signed by a party’s attorney rather than the party

himself; the evidence did not rebut the presumption that the attorney’s actions were at the

direction of his client. And in Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 301 (Tex.

App.—Austin 2000, pet. denied), the court concluded there was a fact question whether the

attorneys for an executrix of an estate had actual authority to bind the executrix to a settlement

agreement she had not signed. The executrix’s attorneys had announced in open court that a

settlement had been reached, and her co-parties, members of her family represented by the same

attorneys, had signed the written agreement. See id. at 295–96. These cases, however, address

the enforceability of the settlement agreement itself where the agreement in question had been

signed or announced in open court by the attorney but not signed by the client. See Breceda, 187

S.W.3d at 152–53; Ebner, 27 S.W.3d at 301. They do not address the viability of a fraud claim

against the attorney by a nonclient for statements allegedly made prior to the execution of an

agreement.

       Weilbacher also cites JJJJ Walker, LLC v. Yollick, No. 14-13-01610-CV, 2014 WL

4933040, at *8–9 (Tex. App.—Houston [14th Dist.] Sept. 25, 2014, no pet. h.), in which the

court concluded there was legally sufficient evidence to support a jury’s finding of fraud by an

attorney (including the element of reliance), so that the trial court should not have granted the

attorney’s motion for judgment notwithstanding the verdict. Yollick does not hold, however, that

                                               –9–
the element of reliance always presents a fact issue for a jury. The same court held in Valls that

summary judgment was proper, expressly rejecting the argument that justifiable reliance was

always a question of fact.                 See Valls, 314 S.W.3d at 635–36 (“Moreover, this Court has

repeatedly decided issues of justifiable reliance as a matter of law. . . . Therefore, we disagree

with the suggestion that a fact-finder must always decide whether a party’s reliance on a

misrepresentation was justified.”); see also Chapman Children’s Trust v. Porter & Hedges,

L.L.P., 32 S.W.3d 429, 443 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (affirming

summary judgment because party was not justified in relying on opposing counsel’s

representations given the adversarial nature of the parties’ relationship).

          The court in Yollick distinguished Chapman Children’s Trust in the context of Yollick’s

affirmative defense of attorney immunity. 4 Yollick, 2014 WL 4933040 at *14 and n.10. The

court stated:

                     Yollick relies on language . . . [in case law] in explaining that a
                     non-client cannot reasonably rely on statements made by opposing
                     counsel in an adversarial context. But in signing the Letter
                     Agreement, Yollick was not relying on his professional knowledge
                     and training as an attorney to make a statement in the course of
                     representing his client in an adversarial context; he was simply
                     signing his name, acting as the Bank’s agent with actual authority
                     to bind his principal to a promise of future performance. The
                     problem is that he knew the promise was false.

Id. (footnote omitted). Weilbacher contends that as in Yollick, Craft was acting as an agent with

actual authority to settle the case on behalf of Jones and DDC when sending the e-mails and draft

settlement agreements to Ticer, even though she had no such authority.

          In cases such as Yollick involving the attorney immunity defense, courts focus on the type

or kind of conduct in which the attorney is engaged to determine whether the conduct is


     4
        Yollick is thus in a slightly different posture; here, Craft sought summary judgment on Weilbacher’s fraud claim rather than on an
affirmative defense of attorney immunity.



                                                                 –10–
actionable or merely undertaken in the representation of the client. See Chapman Children’s

Trust, 32 S.W.3d at 440. In Yollick, Yollick was the bank’s outside counsel. He signed a letter

agreement on a bank’s behalf documenting a “complicated arrangement” under which the bank

would loan money to appellants, the purchasers of a bankrupt hospital system. Yollick, 2014 WL

4933040 at *2. No litigation was pending at the time. On the same day Yollick signed the letter

agreement, he participated in plans to violate the agreements. See id. at *7. As a result of those

plans, appellants’ interest in the hospitals was divested, and they received nothing when the

hospitals were later sold. See id. at *3. Appellants then sued.

           In contrast, the only action taken here by Craft was the exchange of e-mails and draft

settlement agreements in the course of attempting to settle pending litigation on behalf of her

clients.     Similar actions were taken by the attorneys in Chapman Children’s Trust, who

“attempted to negotiate a smaller settlement with the Trusts on their clients’ behalf.” Chapman

Children’s Trust, 32 S.W.3d at 442. The court contrasted these actions with those of the attorney

in Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.]

1985, no writ), in which there were allegations that the attorney was assisting his client in

perpetrating a fraudulent business scheme. See Chapman Children’s Trust, 32 S.W.3d at 442.

The court explained, “[t]he conduct complained of here, unlike the role played by the lawyer in

Likover, involves acts or omissions undertaken as part of the discharge of [the law firm’s] duties

as counsel to an opposing party.” Id. The court concluded, “[b]ecause under Texas law it is the

kind of conduct that is controlling, and not whether that conduct is meritorious or sanctionable,

the trial court’s decision to grant summary judgment on the Trusts’ fraud and conspiracy claims

against [the law firm] was proper.” Id. Similarly, the attorney’s conduct in Yollick contrasts

with Craft’s actions in settlement negotiations with Ticer. Yollick does not compel a holding that

a fact issue exists on justifiable reliance in this case.

                                                  –11–
       Because there is no genuine issue of material fact that Weilbacher justifiably relied on

any misrepresentation by Craft, summary judgment was proper on Weilbacher’s fraud claim.

See Ernst & Young, L.L.P., 51 S.W.3d at 577 (elements of fraud); Espalin, 27 S.W.3d at 682–83

(summary judgment standards). We overrule Weilbacher’s second issue.

       2. Severance

       Rule 41, Texas Rules of Civil Procedure, provides that “[a]ny claim against any party

may be severed and proceeded with separately.” See TEX. R. CIV. P. 41. This rule “grants the

trial court broad discretion in the matter of severance,” and the trial court’s ruling will not be

reversed unless it has abused its discretion. Guar. Fed. Sav. Bank, 793 S.W.2d at 658. “A claim

is properly severable if (1) the controversy involves more than one cause of action, (2) the

severed claim is one that would be the proper subject of a lawsuit if independently asserted, and

(3) the severed claim is not so interwoven with the remaining action that they involve the same

facts and issues.” Id. In his first issue, Weilbacher asserts that these requirements were not met.

       Weilbacher argues that severance was improper for several reasons. First, he argues that

severing a single cause of action, fraud relating to the settlement agreement, was an abuse of

discretion. Second, Weilbacher argues that his injury, the amount of money he should have

received from the settlement agreement, is indivisible. He asserts that if he prevails in his cause

of action against Jones, he would not be entitled to any recovery against Craft, and his claims

against her would be moot. Third, Weilbacher contends that claims made in the alternative

should not be severed. He argues that he would recover either “on the settlement agreement or

under the benefit of the bargain.” Last, Weilbacher argues that his cause of action depends on

Craft’s “capacity to act,” specifically, her authority to act on behalf of Jones to enter into the

settlement agreement.




                                               –12–
       Craft responds that a trial court does not abuse its discretion when it severs the claims

against one of several defendants after granting summary judgment in favor of that defendant.

When the trial court granted the severance, Craft argues, summary judgment had been granted in

her favor so that there were no claims pending against her. Craft also argues that severance was

proper because Weilbacher’s claims against her could have been brought properly as the subject

of a separate lawsuit.

       Both parties cite our opinion in Levetz v. Sutton, 404 S.W.3d 798, 802 (Tex. App.—

Dallas 2013, pet. denied). The parties in Levetz were a brother and sister who had entered into a

written settlement agreement to resolve a dispute regarding their father’s estate. Id. at 800–01.

The sister later claimed she lacked capacity at the time she signed the agreement; the brother

responded that she had breached the agreement. Id. at 801. The trial court ruled on the capacity

claim, but severed the breach of contract claim and transferred it to the county in which the

father’s estate was pending. Id. We concluded the severance was error, because the capacity to

agree to the contract and the breach of the contract “are so interwoven that they involve the same

facts and issues.” Id. at 803. The brother’s claim for breach would require proof of a valid

contract. The sister’s claim that she lacked mental capacity to assent was a defense to the

formation of the contract. Therefore, the trial court’s severance separated interwoven issues that

should be tried together. Id.

       In contrast, Weilbacher’s fraud claim against Craft is a separate cause of action from his

claims against Jones. As we have discussed, summary judgment on Weilbacher’s fraud claim

against Craft was proper. Unlike Levetz, in which the single cause of action for breach of

contract between one plaintiff and one defendant had not been resolved and remained pending at

the time of the severance, Weilbacher’s fraud claim against Craft has been resolved in its

entirety. See id. The issue resolved by summary judgment, an opposing counsel’s liability for

                                              –13–
fraud to a nonclient, is not presented in Weilbacher’s claims against Jones. Where a plaintiff’s

suits against each defendant “are each a cause of action which might properly be tried and

determined as if it were the only claim in controversy,” the “basic requirement for severance” is

met. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733–34 (Tex. 1984).

       We have concluded severance is proper in similar circumstances. In Arredondo v. City of

Dallas, 79 S.W.3d 657, 665 (Tex. App.—Dallas 2002, pet. denied), we explained that “[i]f

summary judgment in favor of one defendant is proper in a case with multiple defendants,

severance of that claim is proper so it can be appealed.” The trial court in Arredondo severed

the plaintiffs’ claims “from those of the remaining 808 firefighters who brought identical claims

against the City.” Id. at 659. We concluded that although the trial court was not required to

sever an interlocutory summary judgment, it had broad discretion in determining whether

severance should be granted. Id. (citing Guidry v. Nat’l Freight, Inc., 944 S.W.2d 807, 812 (Tex.

App.—Austin 1997, no writ) (“Where summary judgment in favor of a single defendant is

proper in a case with multiple defendants, severance of that claim is also proper so that it may be

appealed.”)).

       Weilbacher distinguishes Arredondo, arguing that it does not address or negate the well-

settled principle that a single cause of action cannot be severed. He argues that the question of

capacity—Craft’s authority to act for Jones—is a single, indivisible issue from which his single,

indivisible claim for fraud arises. Weilbacher’s claim against Craft, however, was a separate

cause of action which could have been separately asserted. Even if Weilbacher’s fraud claim

against Jones depends in part on proof of Craft’s actions, it does not follow that Craft must

remain in the suit as a party when the court has determined that she has no liability to Weilbacher

for those actions as a matter of law. Weilbacher’s claim against Craft was properly severable




                                              –14–
under the standards set forth in Guaranty Federal Savings Bank and Rule 41. See Guar. Fed.

Sav. Bank, 793 S.W.2d at 658; TEX. R. CIV. P. 41. We overrule Weilbacher’s first issue.

                                         CONCLUSION

       Summary judgment for Craft was proper, and the trial court did not err by granting

Craft’s motion for severance. We affirm the trial court’s judgment.




                                                  /Michael J. O'Neill/
                                                  MICHAEL J. O’NEILL
                                                  JUSTICE

131252F.P05




                                             –15–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

NATHAN WEILBACHER, Appellant                        On Appeal from the 191st Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-01252-CV        V.                        Trial Court Cause No. 13-06130-J.
                                                    Opinion delivered by Justice O’Neill,
MELODIE CRAFT, Appellee                             Justices Lang-Miers and Brown
                                                    participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Melodie Craft recover her costs of this appeal from
appellant Nathan Weilbacher.


Judgment entered this 19th day of November, 2014.




                                            –16–
