Dismissed and Majority and Dissenting Opinions filed February 28, 2020.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-17-00379-CV

     ALEJANDRO L. PADUA AND THE PADUA LAW FIRM, P.L.L.C.,
                          Appellants
                                        v.

JASON A. GIBSON, P.C. D/B/A THE GIBSON LAW FIRM AND JASON A.
                        GIBSON, Appellees

                   On Appeal from the 129th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2016-31672

                          MAJORITY OPINION
      This is a summary-judgment case (1) in which it is disputed on appeal whether
the summary-judgment movants raised grounds for summary judgment on all claims
and (2) there is no Lehmann-Har-Con finality language in the summary-judgment
order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). We
conclude that there is no final judgment and dismiss the appeal for want of
jurisdiction.
                                        1
      Appellants Alejandro L. Padua and The Padua Law Firm, P.L.L.C. (Padua
parties) filed a petition: (1) stating “claims” for (a) breach of fiduciary duty, (b) fraud
and/or fraud by non-disclosure, (c) unjust enrichment, and (d) quantum meruit;
(2) requesting an accounting; (3) pleading the discovery rule and fraudulent
concealment as defenses to limitations; (4) requesting “damages” of (a) actual
damages, (b) exemplary damages, (c) constructive trust, (d) profit disgorgement, and
(e) equitable reformation; (5) demanding a jury; and (6) requesting disclosure.
Appellees Jason A. Gibson, P.C. d/b/a The Gibson Law Firm and Jason A. Gibson
(Gibson parties) moved for summary judgment, allegedly both on traditional and
no-evidence grounds, in a combined motion and brief which raises the following
grounds that the “claims” are barred under Texas law: (1) “there is no consent to
share legal fees with Padua” (citing Texas Disciplinary Rule of Professional Conduct
1.04); (2) “Padua cannot plead around the requirements of Texas law by suing under
alternate theories”; (3) “the rules specifically limit an attorney’s claims to quantum
meruit only, when consent is not obtained”; and (4) “Padua did not provide any
services to support a quantum meruit recovery.” The Gibson parties cited a single
case for the summary-judgment standard, Centeq Realty, Inc. v. Siegler, 899 S.W.2d
195, 197 (Tex. 1995), arguing under the traditional summary-judgment standard.

      The trial court made the following order on February 21, 2017:

             The Court considered Defendants’ Traditional and No Evidence
      Motion for Summary Judgment. After reviewing the pleadings, the
      evidence and arguments by counsel, if any, the Court GRANTS in
      part[1] Defendants’ Traditional and No Evidence Motion for Summary
      Judgment.
           IT IS THEREFORE ORDERED that Plaintiffs Alejandro Padua
      and The Padua Law[]firm, PLLC take nothing on their claims against
      Defendants Jason A. Gibson P.C. and Jason A. Gibson for breach of

      1
          Text added by the trial court is underlined.
                                                  2
      fiduciary duty, fraud and fraud by non-disclosure, and unjust
      enrichment.
           Defendant’s Traditional and No Evidence Motion for Summary
      Judgment is DENIED as to Quantum Meruit.

      Appellees moved to sever, and on April 13, 2017, the trial court ordered the
following:

             On this day the Court considered Defendants Jason A. Gibson
      and The Gibson Law Firm’s Motion for Severance and Plaintiffs’
      Response thereto. The Court, after considering the Motion and the
      Response, is of the opinion that said Motion has merit and thus should
      be in all things GRANTED. It is accordingly,
            ORDERED that Plaintiffs’ claim for quantum merit is severed
      from Plaintiffs’ dismissed claims for breach of fiduciary duty, fraud,
      fraud by non-disclosure and unjust enrichment. It is further,
             ORDERED that Plaintiffs’ quantum merit claim shall be given a
      new cause number 2016-31672a and the Court’s Order dated February
      21, 2017 granting Defendants’ traditional and no-evidence motion for
      summary judgment as to Plaintiffs’ claims for breach of fiduciary duty,
      fraud, fraud by non-disclosure and unjust enrichment shall become final
      and appealable. It is further,
             ORDERED that the Clerk copy documents from Cause Number
      2016-31672 and place them into the file for Plaintiffs’ new severed
      cause as outlined on Exhibit A attached hereto. A copy of this Order
      shall also be copied and placed in Plaintiffs’ new severed cause. It is
      further,
            ORDERED that the court reporter prepare a written transcript of
      the January 9, 2017 hearing on Defendants’ Traditional and No-
      Evidence Motion for Summary Judgment. It is further,
             ORDERED, that Plaintiffs’ quantum merit claim once
      transferred into a new cause number shall be abated until all appeals
      relating to the Court’s February 21, 2017 Order partially granting
      Defendants’ Traditional and No-Evidence Motion for Summary
      Judgment have been exhausted.
      At oral submission, this court raised questions concerning finality. Both the


                                         3
Padua and Gibson parties responded that the accounting claim was outstanding and
requested an abatement pursuant to Texas Rule of Appellate Procedure 27.2. On
June 7, 2018, we abated the appeal, identifying the accounting claim as the reason
the summary judgment was interlocutory. Our order stated in part:

             This court may abate the appeal to permit the trial court to take
      action to make an interlocutory judgment final, for example by
      (1) signing an order severing a claim that the court previously had not
      adjudicated, or (2) signing an amended judgment in which the trial
      court actually disposes of a claim that the court previously had not
      adjudicated, or (3) signing an amended judgment in which the trial
      court states that “This judgment finally disposes of all parties and all
      claims and is appealable.” See Tex. R. App. p. 27.2, 27.3; Lehmann, 39
      S.W.3d at 206.

      On July 12, 2018, the trial court ordered as follows:

             Came onto be heard, the Parties’ Agreed Motion to Amend
      Severance Order. Previously, the Court considered Defendants Jason
      A. Gibson and The Gibson Law Firm’s Motion for Severance and
      Plaintiffs’ Response thereto. The Court, after considering the Motion
      and the Response, was of the opinion that said Motion had meruit [sic]
      and thus should be in all things GRANTED. Accordingly, the Court
      granted Defendants’ Motion and signed a severance Order dated April
      13, 2017. However, the Order failed to address Plaintiffs’ claim for
      accounting. Thus, the Court agrees that the previous severance Order
      should be vacated and that the Court should add the Plaintiffs’
      accounting claim to the severed cause so that the Court’s Order dated
      February 21, 2017 granting Defendants’ traditional and no-evidence
      motion for summary judgment as to Plaintiffs’ claims for breach of
      fiduciary duty, fraud, fraud by non-disclosure and unjust enrichment
      shall become final and appealable. Thus, the Court Grants the Parties’
      Agreed Motion to Amend Severance Order. Therefore, it is
      accordingly,
              ORDERED that Plaintiffs’ claim for quantum meruit and claim
      for accounting is severed from Plaintiffs’ dismissed claims for breach
      of fiduciary duty, fraud, fraud by nondisclosure and unjust enrichment.
      It is further,

                                         4
            ORDERED that Plaintiffs’ quantum meruit claim and accounting
      claim shall be given a new cause number 2016-31672a and the Court’s
      Order dated February 21, 2017 granting Defendants’ traditional and no-
      evidence motion for summary judgment as to Plaintiffs’ claims for
      breach of fiduciary duty, fraud, fraud by non-disclosure and unjust
      enrichment shall become final and appealable. It is further,
             ORDERED that the Clerk copy documents from Cause Number
      2016-31672 and place them into the file for Plaintiffs’ new severed
      cause as outlined on Exhibit A attached hereto. A copy of this Order
      shall also be copied and placed in Plaintiffs’ new severed cause. It is
      further,
            ORDERED that the court reporter prepare a written transcript of
      the January 9, 2017 hearing on Defendants’ Traditional and No-
      Evidence Motion for Summary Judgment. It is further,
             ORDERED, that Plaintiffs’ quantum meruit claim and claim for
      accounting once transferred into a new cause number shall be abated
      until all appeals relating to the Court’s February 21, 2017 Order
      partially granting Defendants’ Traditional and No-Evidence Motion for
      Summary Judgment have been exhausted.

      The predicate question we must now answer is whether the July 12, 2018 order
made the summary-judgment order final and appealable because there is still no
Lehmann-Har-Con finality language in any of the orders. We conclude there is no
final judgment. See Lehmann, 39 S.W.3d at 206.

      Lehmann’s holding is clear: “We therefore hold that in cases in which only
one final and appealable judgment can be rendered, a judgment issued without a
conventional trial is final for purposes of appeal if and only if either it actually
disposes of all claims and parties then before the court, regardless of its language, or
it states with unmistakable clarity that it is a final judgment as to all claims and all
parties.” Id. at 192–93. So, do the partial summary-judgment order and severance
order actually dispose of all claims and parties then before the trial court?

      On appeal, the Padua parties argue in issue two that disgorgement and


                                           5
imposition of a constructive trust, whether characterized as either “equitable
remedies” or “equitable relief,” were not the subject of a ground in the Gibson
parties’ motion for summary judgment. In seeking reversal of the summary
judgment, the Padua parties reference their “claims for equitable remedies” and cite
the Texas Supreme Court’s discussion in First United Pentecostal Church of
Beaumont v. Parker regarding equitable remedies as claims. 514 S.W.3d 214, 221–
22 (Tex. 2017).

       To dismiss an equitable remedy as a mere remedy that as a matter of law can
never be a claim for relief would be folly on our part. Like the finality issue in
Lehmann, a thoughtful and thorough discussion of how to characterize equity in the
summary-judgment context demands an extensive survey of Texas jurisprudence.
Lehmann does not require that of us in determining finality, and this is not the case
for that undertaking. 39 S.W.3d at 206 (addressing action by appellate court when
there is uncertainty as to finality). The Gibson parties have not presented that issue
in the trial court.

       The disgorgement and imposition of a constructive trust were not the subject
of a ground in the Gibson parties’ motion for summary judgment. It is fundamental
summary-judgment practice that summary-judgment grounds must be expressly
stated. Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858
S.W.3d 337, 341 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979). Without a specific ground to provide notice, there is
no argument on the merits regarding the nature of the pleaded equitable relief that
can justify a final summary judgment.

       It is axiomatic that a movant must establish entitlement to a summary
judgment on the issues expressly presented to the trial court. Chessher v. Sw. Bell
Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (per curiam) (citing Clear Creek Basin

                                          6
Auth., 589 S.W.2d at 678). Because the April 13, 2017 severance order has no
Lehmann-Har-Con finality language, the order did not dispose of the pleaded
equitable relief, much less indicate that the issue was expressly presented to the trial
court. The summary-judgment order remains interlocutory and not appealable. See
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995).

      Having previously abated this case under Texas Rule of Appellate Procedure
27.2 with no success, we now dismiss this interlocutory appeal for want of
jurisdiction. See Tex. R. App. P. 42.3(a).



                                        /s/       Charles A. Spain
                                                  Justice


Panel consists of Chief Justice Frost, and Justices Spain and Poissant. (Frost, C.J.,
dissenting).




                                              7
