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holding that because disgorgement and imposition of a constructive trust were not the subject of a ground in the motion for summary judgment, the order did not dispose of them
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NO. 14-17-00379-CV
02-28-2020
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
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.
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 [ ] 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 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.
Text added by the trial court is underlined.
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 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,
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 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.2d 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 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).
( Frost, C.J., dissenting).
DISSENTING OPINION
Kem Thompson Frost, Chief Justice, dissenting.
This appeal arises out of a dispute between two lawyers (and their respective law firms) over the validity of a joint-representation agreement providing for a contingency-fee split between the firms. The two plaintiffs asserted six claims against the two defendants. The defendants asserted no claims. After granting summary judgment in part, the trial court rendered judgment that the plaintiffs take nothing on four of their claims and then severed the other two claims into a new lawsuit. Because the trial court disposed of all claims and all parties in the case, the trial court's judgment stands final and appealable, and this court stands clothed with appellate jurisdiction to address the merits of the appeal. Instead of doing so, the majority dubs the trial court's judgment interlocutory and dismisses this appeal for lack of appellate jurisdiction. I respectfully dissent.
Six Claims Asserted
Appellants/plaintiffs Alejandro L. Padua and The Padua Law Firm, PLLC (collectively, the "Padua Parties") filed suit in the trial court against appellees/defendants Jason A. Gibson and Jason A. Gibson, P.C. d/b/a the Gibson Law Firm (collectively, the "Gibson Parties"). Under the unambiguous language of their live pleading, the Padua Parties asserted claims for (1) breach of fiduciary duty, (2) fraud, (3) fraud by non-disclosure, (4) unjust enrichment, (5) quantum meruit, and (6) an accounting. In a paragraph underneath the underlined heading "STATEMENT OF CLAIMS ," the Padua Parties, asserted that the Gibson Parties' "conduct constitutes breach of fiduciary duty, fraud, fraud by non-disclosure, unjust enrichment[,] and, in the alternative, quantum meruit, as those terms are understood in law." The Padua Parties then added that they "also file this suit to compel an accounting." Under their statement of claims, the Padua Parties did not mention disgorgement. Nor did they mention the imposition of a constructive trust. The Gibson Parties did not assert any claims.
Underlining omitted.
In their live pleading the Padua Parties sought disgorgement and a constructive trust as equitable remedies for breaches of fiduciary duty, not as claims.
Claims and remedies are not the same thing. In their live pleading, the Padua Parties sought disgorgement and the imposition of a constructive trust as equitable remedies for the Gibson Parties' alleged breaches of fiduciary duty. In the remedies section of their live pleading, the Padua Parties asked the trial court to order "[the Gibson Parties] to disgorge their ill-gained profits due to [the Gibson Parties'] breach of fiduciary duty." The Padua Parties pointed to disgorgement as a remedy the trial court may order when a fiduciary competes with a beneficiary and then benefits in some way. In the remedies section, the Padua Parties also asked the trial court "to impose a constructive trust on the proceeds, funds, or property obtained by [the Gibson Parties] as a result of the breach of fiduciary duty." The Padua Parties stated in their petition that "[a] constructive trust is an equitable remedy." They did not label these remedies as claims. They did not undertake to assert them as claims. And, they did not treat either request as a claim. As the masters of their petition, the Padua Parties opted in plain text to seek disgorgement and constructive trust not as claims but as equitable remedies for the Gibson Parties' alleged breaches of fiduciary duty.
See The Fair v. Kohler Die & Specialty Co. , 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) ("The party who brings a suit is master to decide what law he will rely upon.").
On appeal, the Padua Parties assert that the requests for disgorgement and for a constructive trust are equitable remedies, not claims.
On appeal, the Padua Parties assert in their brief that "[the Padua Parties] sought actual damages, exemplary damages, and the equitable remedies of disgorgement of profits and imposition of a constructive trust." Just as in the trial court, in their appellate briefing, the Padua Parties do not include their requests for disgorgement and constructive trust in the itemized list of the claims they assert. According to the Padua Parties, the Gibson Parties did not move for summary judgment on any ground that challenged liability; instead, the Padua Parties claim that in their summary-judgment grounds, the Gibson Parties attacked only the damage element of each of the Padua Parties' claims. The Padua Parties argue that because the Gibson Parties did not present a summary-judgment ground expressly attacking the equitable remedies of disgorgement and constructive trust, the trial court reversibly erred by granting more relief than the Gibson Parties requested.
Requests for disgorgement and for a constructive trust are equitable remedies, not claims.
The law treats a request for disgorgement as an equitable remedy that a court may award after a party proves its entitlement to recover on a claim. A request for disgorgement is not itself a claim. Likewise, under binding precedent, a request for a constructive trust is an equitable remedy that a court may award after a party proves its entitlement to recover on a claim; a request for the imposition of a constructive trust is not itself a claim. In the simplest terms, disgorgement and constructive trust are means by which a court may redress a claimant's injury. These equitable remedies do not come into play unless and until a party prevails on a claim.
See First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 221 (Tex. 2017) (holding that disgorgement and fee forfeiture are equitable remedies that a court may award based a breach-of-fiduciary-duty claim); Burrow v. Arce , 997 S.W.2d 229, 237–40 & nn. 36, 37 (Tex. 1999) (concluding that disgorgement and fee forfeiture are equitable remedies that a court may award based a breach-of-fiduciary-duty claim); Hsin-Chi-Su v. Vantage Drilling Co. , 474 S.W.3d 284, 298 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (holding that disgorgement is an equitable remedy that a court may award based a breach-of-fiduciary-duty claim); Bigham v. Southeast Texas Environmental, LLC , 458 S.W.3d 650, 673–74 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding that disgorgement is an equitable remedy that a court may award based a breach-of-fiduciary-duty claim).
See First United Pentecostal Church of Beaumont , 514 S.W.3d at 221 ; Burrow , 997 S.W.2d at 237–40 & nn. 36, 37 ; Hsin-Chi-Su , 474 S.W.3d at 298 ; Bigham , 458 S.W.3d at 673–74.
See Burrow , 997 S.W.2d at 245 (concluding that the imposition of a constructive trust is an equitable remedy);Hsin-Chi-Su , 474 S.W.3d at 298 (holding that the imposition of a constructive trust is an equitable remedy that a court may award based a breach-of-fiduciary-duty claim).
The trial court signed an interlocutory order granting summary judgment as to four of the six claims.
The Gibson Parties filed a summary-judgment motion asserting various grounds on which they claimed the law required the trial court to grant summary judgment dismissing all of the Padua Parties' claims. The trial court signed an interlocutory order (1) granting the summary-judgment motion in part, (2) ordering that the Padua Parties take nothing on their claims for breach of fiduciary duty, fraud, fraud by non-disclosure, and unjust enrichment, and (3) denying the summary-judgment motion as to the quantum-meruit claim. The trial court did not address the accounting claim.
The majority does not list all of the Gibson Parties' summary-judgment grounds, but that issue need not be addressed to determine whether the trial court's judgment is final and appealable. See ante at 843.
The trial court severed one of the two remaining claims into a separate suit.
On the Gibson Parties' motion, the trial court later severed the Padua Parties' quantum-meruit claim into a separate case, leaving only the claim for an accounting unaddressed. Under binding precedent, an action for an accounting is a claim rather than a remedy. So, even after this severance order, the trial court had not disposed of all claims and all parties in the case, and the trial court's judgment remained interlocutory.
See Hoskins v. Hoskins , 497 S.W.3d 490, 492 & n.2 (Tex. 2016) ; Kerlin v. Sauceda , No. 05-0653, 2006 WL 4706002, at *1 (Tex. 2006) (severance order).
See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 192, 200 (Tex. 2001).
The trial court signed an amended order severing both remaining claims into a separate suit, thus making the summary-judgment order final.
The Padua Parties filed a notice of appeal, attempting to pursue an appeal from the trial court's summary-judgment order. At oral argument, the parties and this court discussed the trial court's failure to dispose of the accounting claim and the interlocutory nature of the judgment from which the Padua Parties sought to appeal. Soon after oral argument, this court abated the appeal and remanded this case to the trial court to give the trial court an opportunity to take action to make the summary-judgment order final. During this abatement period, the trial court granted a motion to which all parties agreed, and the trial court ordered both the quantum-meruit claim and the accounting claim severed into a separate case. After severing these two claims, the trial court ordered that the court's summary-judgment order "shall become final and appealable" and that the severed case be abated until all appeals relating to the summary-judgment order in the non-severed case have been exhausted.
Neither the Padua Parties nor the Gibson Parties now argue that the summary-judgment order is interlocutory or that this court lacks appellate jurisdiction. Nonetheless, because lack of jurisdiction cannot be waived, as a threshold inquiry, even without any jurisdictional challenge, this court must confirm that it has appellate jurisdiction. Because no statute authorizes an interlocutory appeal in this case, this court has appellate jurisdiction only if the trial court's summary-judgment order is final. An order issued without a conventional trial on the merits, like the one before us today, stands final for purposes of appeal if the order actually disposes of all claims and all parties before the trial court. The order in today's case does just that.
See M.O. Dental Lab v. Rape , 139 S.W.3d 671, 673 (Tex. 2004).
See Stary v. DeBord , 967 S.W.2d 352, 352–53 (Tex. 1998) (per curiam).
See Lehmann , 39 S.W.3d at 192, 200.
To recap, in its summary-judgment order, the trial court ordered that the Padua Parties take nothing as to the first four claims (breach of fiduciary duty, fraud, fraud by non-disclosure, and unjust enrichment). When the trial court signed the amended severance order, the trial court severed the other two claims (quantum meruit and the claim for an accounting) into a different, separate case. Since this severance, the Padua Parties have asserted only the first four claims in this case, and in its summary-judgment order, the trial court ruled that they take nothing on each of these claims, thus disposing of all claims and all parties. Though the Padua Parties requested the remedies of disgorgement and the imposition of a constructive trust based on the Gibson Parties' alleged breaches of fiduciary duty, the trial court disposed of these requests by ruling that the Padua Parties take nothing on their breach-of-fiduciary-duty claims. Though the record and the law show that disgorgement and constructive trust are equitable remedies, whatever one may call them, the Padua Parties sought them based on their breach-of-fiduciary-duty claims, and the trial court ordered that the Padua Parties take nothing on these claims. Thus, under binding precedent from the Supreme Court of Texas, the amended severance order made the summary-judgment order final and appealable because after the trial court signed the amended severance order, the summary-judgment order disposed of all claims and all parties in the non-severed case. The Padua Parties' argument that no summary-judgment ground supports the trial court's judgment as to the requests for disgorgement and constructive trust does not make the summary-judgment order interlocutory.
See Ritzell v. Espeche , 87 S.W.3d 536, 537–38 (Tex. 2002) ; Jacobs v. Satterwhite , 65 S.W.3d 653, 655 (Tex. 2001) ; Lehmann , 39 S.W.3d at 205–06.
See Ritzell , 87 S.W.3d at 537–38 ; Jacobs , 65 S.W.3d at 655 ; Lehmann , 39 S.W.3d at 205–06 ; Graff v. 2920 Park Grove Venture, Ltd. , No. 05-16-01411-CV, 2018 WL 2949158, at *8 (Tex. App.—Dallas June 13, 2018, pet. denied) (holding that requests for disgorgement and imposition of a constructive trust are not independent claims and that these requests fail as a matter of law if summary judgment is proper as to the claims on which the plaintiff bases the requests, and thus a summary-judgment ground specifically challenging these requests is not necessary if the movant is entitled to summary judgment based on grounds challenging the claims on which the requests are based) (mem. op.).
See Ritzell , 87 S.W.3d at 537–38 ; Jacobs , 65 S.W.3d at 655 ; Lehmann , 39 S.W.3d at 205–06.
The majority suggests that the summary-judgment order is interlocutory because the Padua Parties assert on appeal that the trial court erred in granting summary judgment as to their requests for the equitable remedies of disgorgement and constructive trust as no summary-judgment ground supports this ruling. This argument goes to the merits, not to whether the summary-judgment order is final. The Padua Parties argue that the judgment is final and erroneous. They do not argue that the summary-judgment order is interlocutory. As the Supreme Court of Texas made clear in Lehmann , a trial court's error in granting summary judgment without any summary-judgment ground to support that ruling makes the judgment erroneous, but the error does not make the judgment interlocutory if the trial court disposed of all claims and all parties. To the extent the majority concludes otherwise, it goes against binding supreme-court precedent.
See Ritzell , 87 S.W.3d at 537–38 ; Jacobs , 65 S.W.3d at 655 ; Lehmann , 39 S.W.3d at 200, 205–06.
See Ritzell , 87 S.W.3d at 537–38 ; Jacobs , 65 S.W.3d at 655 ; Lehmann , 39 S.W.3d at 200, 205–06.
This court must address whether the requests for disgorgement and a constructive trust are claims and whether the trial court disposed of all claims and all parties.
This court is duty-bound to determine appellate jurisdiction. That means we must review and address all issues relating to appellate jurisdiction. Today the issues relating to jurisdiction include whether the requests for disgorgement and imposition of a constructive trust stand as independent claims and whether in the summary-judgment order the trial court disposes of all claims and all parties. Yet, the majority does not address either issue.
See M.O. Dental Lab , 139 S.W.3d at 673.
See id.
See Lehmann , 39 S.W.3d at 192, 200.
The majority claims that this court need not address how the requests for disgorgement and constructive trust should be characterized because the Gibson Parties did not present that issue in the trial court. But, the law imposes no requirement that parties preserve error in the trial court before this court may inquire into these issues as part of its appellate-jurisdiction determination. Regardless of what issues the Gibson Parties raised in the trial court, this court has a duty to determine whether these requests are remedies or independent claims and to determine whether the trial court disposed of all claims and all parties. By dismissing this appeal without conducting the requisite jurisdictional analysis, the majority shirks this duty and wrongly concludes this court lacks appellate jurisdiction. Likewise, the majority misses the mark in concluding that the court need not address the characterization of the disgorgement and constructive-trust requests because they were not the subject of a ground in the Gibson Parties' summary-judgment motion. The grounds the Gibson Parties asserted in their summary-judgment motion hold no relevance to the jurisdictional inquiry. This appeal is not one in which the trial court's order states that the trial court grants the summary-judgment motion in all things, without expressly disposing of any claim, and this court has to inquire as to whether the summary-judgment movant sought a final judgment in the motion. Instead, the jurisdictional inquiry in this case turns on the unambiguous language in the summary-judgment order, in which the trial court decreed that the Padua Parties take nothing as to four claims. Under that order's plain text, the trial court disposed of four claims, including the requests for disgorgement and a constructive trust as remedies for the breach-of-fiduciary-duty claims. The trial court's severance of the remaining two claims later made the summary-judgment order final and appealable. The Gibson Parties' summary-judgment grounds have no effect on whether the trial court disposed of all claims and all parties. As the supreme court has held, the trial court's granting of a final summary judgment based on a motion that did not contain grounds broad enough to challenge all claims may make the summary judgment erroneous, but the error does not make the summary judgment interlocutory. So, even if the Gibson Parties' summary-judgment grounds were not sufficiently broad to support summary judgment on the requests for the equitable remedies, this failure would mean that the trial court erred in rendering a take-nothing judgment as to the breach-of-fiduciary-duty claims in their entirety, but the error could not and would not change the finality of the judgment based on the trial court's take-nothing judgment on the only four claims remaining in the case.
See M.O. Dental Lab , 139 S.W.3d at 673.
See id.
See Ritzell , 87 S.W.3d at 537–38 ; Jacobs , 65 S.W.3d at 655 ; Lehmann , 39 S.W.3d at 200, 205–06.
See Ritzell , 87 S.W.3d at 537–38 ; Jacobs , 65 S.W.3d at 655 ; Lehmann , 39 S.W.3d at 200, 205–06.
The majority also concludes that the trial court's summary-judgment order is interlocutory because "[t]he disgorgement and imposition of a constructive trust were not the subject of a ground in the Gibson [P]arties' motion for summary judgment." Again, the Gibson Parties' summary-judgment grounds are not germane to the jurisdictional issue before this court. But even if this issue held some relevance to the jurisdictional question, the majority errs in making this statement because the requests for disgorgement and a constructive trust were the subject of a summary-judgment ground. The Gibson Parties expressly presented summary-judgment grounds challenging liability on the Padua Parties' breach-of-fiduciary-duty claims, upon which the Padua Parties based these requests. In this context, the law provides that these grounds are sufficiently broad to support summary-judgment as to the requests. The majority indicates that the Padua Parties argue on appeal that their requests for disgorgement and imposition of a constructive trust stand as independent claims and that the Padua Parties cite the First United Pentecostal Church case for this proposition. The Padua Parties do neither. The Padua Parties refer to disgorgement and imposition of a constructive trust as "remedies" most of the time. Though, at times, they refer to these equitable remedies as "claims" in passing, the Padua Parties do not assert that disgorgement and imposition of a constructive trust are independent claims of which the trial court must dispose for there to be a final judgment. Instead, the Padua Parties assert that "[b]ecause [the Gibson Parties] did not move for summary judgment on the equitable remedies of disgorgement and constructive trust, the trial court improperly granted more relief than requested, warranting reversal. See First United , 514 S.W.3d at 222 (reversing summary judgment when motion only addressed actual damages and not the equitable remedy of disgorgement)." As the parenthetical to the Padua Parties' citation reflects, in First United Pentecostal Church , the supreme court held that the trial court erred in granting summary judgment on the part of a breach-of-fiduciary-duty claim in which the plaintiff sought disgorgement because the summary-judgment movant challenged damages but not liability, and causation of damages was not required for the plaintiff to obtain disgorgement as an equitable remedy for the defendant's breaches of fiduciary duty. The First United court did not conclude that disgorgement was a "claim" rather than an "equitable remedy," nor did the high court determine that disgorgement or any other remedy is an independent claim of which the trial court must dispose for there to be a final judgment.
See Graff , 2018 WL 2949158, at *8 (holding that requests for disgorgement and imposition of a constructive trust are not independent claims and that these requests fail as a matter of law if summary judgment is proper as to the claims on which the plaintiff bases these requests, and thus a summary-judgment ground specifically challenging these requests is not necessary if the movant is entitled to summary judgment based on grounds challenging the claims on which the requests are based); Shultz on Behalf of Shultz v. Lone Star Road Construction, Ltd. , No. 14-17-00550-CV, 593 S.W.3d 750, 761–64 (Tex. App.—Houston [14th Dist.] July 18, 2019, no pet. h.) (holding that a request for exemplary damages based on an allegation of gross negligence in the context of a negligence claim is not a claim separate from the negligence claim and that this request fails as a matter of law if summary judgment is proper as to the negligence claim on which the plaintiff bases the request, and thus a summary-judgment ground expressly challenging the negligence claim is sufficiently broad to entitle the movant to summary judgment on the exemplary-damages request, even in the absence of a ground specifically challenging this request); Said v. Sugar Creek Country Club, Inc. , No. 14-17-00079-CV, 2018 WL 4177859, at *5-6 (Tex. App.—Houston [14th Dist.] Aug. 31, 2018, pet. denied) (same as Shultz on Behalf of Shultz ) (mem. op.). Even under the majority's statement of the summary-judgment grounds, the grounds stated, if sustained by the trial court, would result in the dismissal of the breach-of-fiduciary-duty claim as a matter of law, and thus these grounds are sufficiently broad to support the dismissal of the requests for disgorgement and a constructive trust, even if the summary-judgment motion does not mention these requests. See Graff , 2018 WL 2949158, at *8 ; Shultz on Behalf of Shultz , 593 S.W.3d at 761–64 ; Said , 2018 WL 4177859, at *5–6.
See ante at 845–46; First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214 (Tex. 2017).
See First United Pentecostal Church of Beaumont , 514 S.W.3d at 220–22.
See id.
This court has jurisdiction to review the final summary-judgment order.
Because the trial court rendered a take-nothing judgment on the only four claims that remain in this case, the trial court disposed of all claims and all parties. The record shows that this court holds appellate jurisdiction to review the trial court's final summary-judgment order. The majority errs in dismissing the appeal rather than addressing the merits of the issues presented.