Affirmed and Majority and Dissenting Opinions filed October 10, 2019.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-18-00060-CV

                    CHRISTOPHER DURHAM, Appellant

                                         v.
          BARBARA ACCARDI AND JULES ACCARDI, Appellees

                   On Appeal from the 261st District Court
                            Travis County, Texas
                   Trial Court Cause No. D-1-GN-17-006778

                            DISSENTING OPINION

      When a defendant does not move for summary judgment on all claims alleged
in the plaintiff’s live pleadings and the trial court does not grant more relief than
requested, can the appellate court fashion a final, appealable judgment from an
otherwise interlocutory order by applying a legal argument concerning a claim for
which the defendant did move for summary judgment to a claim for which the
defendant did not move for summary judgment? In simpler terms, can the appellate
court give more summary-judgment relief than was requested, and in so doing, create
a final, appealable judgment that confers jurisdiction?1 I believe the answer is “No.”
See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

       I do not know why the Accardis moved for summary judgment on negligence
and gross negligence, but not on negligence per se. This court could abate the appeal
and let the trial court figure it out.2 Perhaps there was a reason to omit negligence
per se from the motion for summary judgment. Perhaps not. And it is true that the
parties do not question this court’s jurisdiction. But that is also irrelevant—it is
always the court’s duty to determine its jurisdiction to act, a concept in the bones of
the American judicial system since Marbury v. Madison, 5 U.S. 137 (1803).

       I respectfully dissent.

       Appellant Christopher Durham’s live pleadings consist of his July 31, 2014
plaintiff’s third amended petition. Defendants are Austin Budget Signs, Inc.; Barbara
Accardi; Jules Accardi; STN La Fuente Restaurant, LLC; The City of Austin; and
The City of Austin d/b/a Austin Energy. Durham pleads causes of action for
(1) negligence and gross negligence and (2) negligence per se, requests punitive
damages, and asks that the corporate veil of Austin Budget Signs be pierced.

       La Fuente moved for summary judgment “as to all of Plaintiff Christopher
Durham’s claims against La Fuente,” and the district court on September 5, 2014
rendered an unambiguous traditional summary judgment: “All claims which were or
could have been asserted by Plaintiff Christopher Durham against Defendant STN
La Fuente Restaurant, LLC are hereby dismissed, in their entirety, with prejudice to


       1
         There is no presumption of finality that applies to summary judgments. Houston Health
Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986) (per curiam). If a summary
judgment does not dispose of all parties and claims, then it is interlocutory and not appealable. See
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995).
       2
           Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001).

                                                 2
the re-filing of same.” La Fuente then moved to sever. The district court signed an
unambiguous            severed   final   judgment       containing      Lehmann        Har-Con3
more-than-Mother Hubbard4 language on November 5, 2014:

              IT IS THEREFORE ORDERED that the claims asserted by
       Plaintiff Christopher Durham against Defendant La Fuente in Cause
       No. D-1-GN-13-001239 . . . are hereby SEVERED from Plaintiff’s
       claims against Defendants Austin Budget Signs, Inc., Barbara Accardi
       and Jules Accardi, City of Austin, and The City of Austin d/b/a Austin
       Energy, which claims remain pending under cause number
       D-1-GN-13-001239 (hereby collectively the “Original Durham
       case”).
                 ...
              IT IS FURTHER ORDERED that Defendant La Fuente shall
       pay all filing fees associated with this severance.
              Moreover, in light of the Court’s order granting Defendant La
       Fuente’s Motion for Traditional Summary Judgment, the Court finds
       that all claims, causes of action, and issues between Plaintiff
       Christopher Durham and Defendant La Fuente have been resolved such
       that judgment should be rendered in favor of Defendant La Fuente.
             IT IS THEREFORE ORDERED, ADJUDGED, AND
       DECREED that Plaintiff Christopher Durham TAKE NOTHING
       from Defendant La Fuente.
              This is a final judgment that disposes of all claims and causes of
       action between Plaintiff Christopher Durham and Defendant STN La
       Fuente Restaurant, LLC, which claims have been severed from the
       Original Durham case. All relief not expressly granted is denied. This
       final judgment is immediately appealable.
       The City of Austin and Austin Energy moved for summary judgment, and the
district court on August 21, 2016 rendered an unambiguous summary judgment:
“THEREFORE, the Motion for Summary Judgment filed by Defendants City of

       3
           See id.
       4
         A Mother Hubbard clause generally recites that all relief not expressly granted is denied.
See N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 898 (Tex. 1966).

                                                3
Austin and Austin Energy is GRANTED. Accordingly, the Court hereby dismisses
all of Plaintiff’s claims against Defendants City of Austin and Austin Energy with
prejudice. All relief not herein granted is expressly denied.” The City of Austin and
Austin Energy then moved to sever. The clerk’s record does not contain a severance
order for the City of Austin and Austin Energy.

       On August 31, 2016, appellees Barbara Accardi and Jules Accardi again
moved for summary judgment,5 and the district court on October 20, 2016 rendered
an unambiguous summary judgment:

       It is therefore
            ORDERED, ADJUDGED AND DECREED that Barbara
       Accardi’s and Jules Accardi’s Traditional and No-Evidence Summary
       Judgment is hereby GRANTED.
             IT IS THEREFORE ORDERED that Plaintiff take and recover
       nothing on all claims and causes of action asserted against defendants
       Barbara Accardi[] and Jules Accardi.[6]

On October 28, 2016, Durham filed a motion to reconsider this summary-judgment
ruling.

       Rather than simply denying the motion for reconsideration, on June 7, 2017,
the district court signed the following order granting summary judgment that did not
explicitly dispose of all claims against the Accardis:

            ORDER Granting DENYING PLAINTIFF’S MOTION TO
           RECONSIDER RULING ON DEFENDANTS’ TRADITIONAL
       5
         The Accardis originally moved for summary judgment on February 13, 2014. The district
court heard La Fuente’s and the Accardis’ motions for summary judgment on July 23, 2014. In a
July 28, 2014 letter, the district court stated it would grant La Fuente’s motion and deny the
Arcardis’ motion.
       6
         The last paragraph of the summary judgment granted more relief than requested because
the Accardis did not expressly move for summary judgment on Durham’s negligence-per-se
claims. That is error, but if it had been severed, this summary judgment could have become final
and appealable. See G & H Towing Co. Magee, 347 S.W.3d 293, 297–98 (Tex. 2011) (per curiam).

                                               4
      AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
                        EVIDENCE
             ON THIS DAY the Court, having considered Plaintiff
      Christopher Durham’s Motion to Reconsider Ruling on Defendants
      Barbara Accardi and Jules Accardi’s Traditional and No-Evidence
      Motion for Summary Judgment Evidence, the response of the Accardi
      defendants, the evidence, the arguments of counsel, and applicable law,
      finds that the motion to reconsider lacks merit and should in all things
      be DENIED granted. It is therefore
            ORDERED that Plaintiff Christopher Durham’s Motion to
      Reconsider Ruling on Defendants Barbara Accardi and Jules Accardi’s
      Traditional and No-Evidence Motion for Summary Judgment Evidence
      is DENIED granted.
             SIGNED on April June 7, 2017.

      While the October 20, 2016 summary judgment unambiguously “ORDERED
that Plaintiff take and recover nothing on all claims and causes of action asserted
against defendants Barbara Accardi[] and Jules Accardi,” the subsequent June 7,
2017 summary judgment merely granted Barbara Accardi’s and Jules Accardi’s
traditional and no-evidence motion for summary judgment without explicitly stating
that Durham take nothing, forcing a review of Barbara Accardi’s and Jules Accardi’s
August 31, 2016 “Traditional and No-Evidence Motion for Partial Summary
Judgment.” The motion claims to negate Durham’s (1) alter-ego theory, (2) other
corporate-veil theory of individual liability, (3) claims of negligence because he was
an at-will employee of Austin Budget Signs, Inc., and (4) claims of negligence, gross
negligence, or exemplary damages because Durham has no evidence that the
Accardis individually owed a duty, breached any duty, or proximately caused
injuries. The Accardis in their motion for summary judgment do not expressly seek
summary judgment on Durham’s negligence-per-se claims. See Tex. R. Civ. P.
166a(c), (i); Clear Creek Basin Auth., 589 S.W.2d at 671.

      On July 17, 2017, Durham moved to sever his “distinct claims of alter ego
                                          5
against Defendants Barbara Accardi and Jules Accardi.” Durham stated in his
motion that “the facts of the Plaintiff’s severed alter ego claim are different from the
facts of Plaintiff’s claim for negligence.” Durham requested: “In sum, the Court
should grant Plaintiff’s motion and sever his claim of alter ego against Defendants
Barbara Accardi and Jules Accardi.”

      The district court signed the following order:

                                       ORDER
            The Court, having considered Plaintiff’s Motion to Sever and all
      responsive briefing, applicable law, and/or the arguments of counsel,
      Mr. Christiansen for Plaintiff and Mr. Carlson for
      Defendants, finds the motion to be meritorious and there being
      no objection, and it should in all things be GRANTED. It is
      therefore
           ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
      Motion to Sever is hereby is GRANTED, in all respects, so that
      Plaintiff’s claims against Barbara and Jules Accardi,
      individually, are severed so that the summary judgment
      on their behalf may become final. The sole remaining
      defendant in this cause is Austin Budget Signs, Inc.
             SIGNED this 14th day of December, 2017.

      Although this order does not comply with Lehmann v. Har-Con Corp., 39
S.W.3d 191, 206 (Tex. 2001), the appellant, the appellees, and the court consider
this to be a judgment that on its four corners disposes of all parties and all claims
and is therefore a final and appealable judgment. Perhaps the court believes that the
severance order cures the problems created by the June 7, 2017 summary judgment,
but the phrase “so that the summary judgment . . . may become final” is not sufficient
language that creates a final judgment when one did not already exist. The fact that
both the appellant and the appellees think the December 14, 2017 severance order
creates a final, appealable judgment does not matter. Lack of subject-matter

                                           6
jurisdiction cannot be agreed or waived. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445 (Tex. 1993). It is fundamental error.

       The district court rendered summary judgment clearly disposing of all claims
against La Fuente and severed those claims into a final and appealable judgment
using proper Lehmann Har-Con more-than-Mother Hubbard language. The district
court separately rendered summary judgment clearly disposing of all claims against
the Accardis, but replaced that clarity with a new summary-judgment order that
merely granted the summary-judgment motion, a motion which does not expressly
request that summary judgment be rendered on the negligence-per-se claims.7 This
summary judgment for the Accardis was severed without appropriate Lehmann Har-
Con more-than-Mother Hubbard language. The district court knew how to do it
correctly, but it instead made a mess.

       There is no final judgment. We do not have subject-matter jurisdiction. While
it might be perceived as efficient to bring this dispute to an end, doing so is
fundamental error.

       I respectfully dissent.




                                            /s/       Charles A. Spain
                                                      Justice



Panel consists of Justices Wise, Zimmerer, and Spain. (Spain, J., dissenting.)



       7
        The issue is not whether the arguments for rendition of summary judgment on negligence
claims could be applied to negligence-per-se claims. The issue is whether the Accardis requested
summary judgment on Durham’s negligence-per-se claims and complied with rule 166a(c) and (i).

                                                  7
