TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON RECONSIDERATION EN BANC

NO. 03-20-00058-CV

Appellant, Christopher F. Bertucci, as Executor of The Estate of Anthony R. Bertucci, 

Deceased, and derivatively on behalf of American Affordable Homes & Properties, Inc.; 

American Affordable Homes, LP; Town Vista Development, LLC; Town Vista Terrace, 

Inc.; and MidCrowne Senior SLP, LLC // Cross-Appellant, Eugene L. Watkins, Jr. 

v. 

Appellee, Eugene L. Watkins, Jr. // Cross-Appellee, Christopher F. Bertucci, as Executor of 

The Estate of Anthony R. Bertucci, Deceased, and derivatively on behalf of American 

Affordable Homes & Properties, Inc.; American Affordable Homes, LP; Town Vista 

Development, LLC; Town Vista Terrace, Inc.; and MidCrowne Senior SLP, LLC

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY

NO. C-1-PB-17-000937, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

 I concur with the en banc Court’s decision to overrule Dalisa v. Bradford, 

81 S.W.3d 876 (Tex. App.—Austin 2002, no pet.). As an en banc Court, we overrule Dalisa’s

holding that when a trial court renders an improper severance, the severance divests the court of 

appeals of jurisdiction over the appeal, and we disapprove of the disposition in Dalisa—that of 

vacating the severance and dismissing the appeal for want of jurisdiction. Slip op. at 7 (citing 

Dalisa, 81 S.W.3d at 882). 
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However, I respectfully dissent from the en banc Court’s holding that an improper

severance renders the trial court’s judgment interlocutory—the same conclusion reached by the 

panel in Dalisa. Compare id. at 7-8 (following other appellate courts that have held “after

determining an order was wrongly rendered final by an improper severance, the underlying 

judgment or order is interlocutory and, thus, that the appellate court lacks jurisdiction to reach the 

issues challenged in the interlocutory order or judgment” and concluding that “[b]ecause the 

severance was improper, . . . the summary judgment is not final”), with Dalisa, 81 S.W.3d at 882

(“The invalid severance is prejudicial because it converted into a final judgment a judgment that 

is interlocutory.”).

In my opinion, the Texas Supreme Court’s opinions in In re Elizondo, 544 S.W.3d 

824 (Tex. 2018) (orig. proceeding) (per curiam), and Lehmann v. Har-Con Corp., 39 S.W.3d 191 

(Tex. 2001), control the outcome of this case. Neither Elizondo nor Lehmann contemplates the 

result that the en banc Court reaches. In effect, the en banc Court reviews the record to determine 

that the severance is improper, and upon so finding, then decides that the appeal is interlocutory 

instead of final and appealable. See slip op. at 9 (applying Rule 27.2, which allows modification 

of “an appealed order that is not final”), 10 (declining to consider “summary-judgment merits 

issues on appeal without jurisdiction over the appeal”). Elizondo and Lehmann explicitly forbid 

courts to take such action if a judgment or order contains clear and unequivocal finality language. 

If the order contains clear and unequivocal finality language, as it does in this case, then an 

appellate court “cannot look at the record” to determine whether the judgment was in fact final 
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and appealable.1 See In re Elizondo, 544 S.W.3d at 826-28; see also Lehmann, 39 S.W.3d at 206. 

“Instead, it must take the order at face value.” In re Elizondo, 544 S.W.3d at 828. An order with 

a clear and unequivocal finality phrase is a final order, “and the failure to actually dispose of all 

claims and parties renders the order erroneous but not interlocutory.” In re Guardianship of Jones, 

629 S.W.3d 921, 924 (Tex. 2021) (per curiam) (holding that probate court’s order expressly stating 

that it was “final order” that constituted dismissal of bill of review in guardianship proceeding was 

final and appealable order); In re Elizondo, 544 S.W.3d at 828. As the supreme court explained 

in Lehmann, “An express adjudication of all parties and claims in a case is not interlocutory merely 

because the record does not afford a legal basis for the adjudication. In those circumstances, the 

1 In this case, the probate court’s order demonstrates the court’s intention to render a final 

and appealable judgment in this phase of the probate proceeding on the Executor’s claims brought 

on behalf of the Estate and derivatively on behalf of the Companies against Watkins, while 

severing and transferring Watkins’s claims against the Companies back to the district court from 

which they had originated. See In re Guardianship of Jones, 629 S.W.3d 921, 925 (Tex. 2021)

(per curiam) (explaining that in probate and guardianship proceedings, an order disposing of all 

issues and all parties “in the phase of the proceeding for which it was brought” is final and 

appealable even when the proceeding remains pending as to other issues (quoting Crowson 

v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995))). The probate court included language in the order 

explaining its disposition of the discrete set of issues between Watkins and the Executor over 

which it had jurisdiction. The order contained the following clear and unequivocal finality 

language disposing of that set of issues:

[A]ll prior orders granting Watkins relief or denying the Executor’s relief . . . are 

now considered final and appealable. This Order therefore disposes of all issues 

retained by this Court as between the parties, and is a judgment as to the 

Executor’s claims.

See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (suggesting that language stating 

that “[t]his judgment finally disposes of all parties and all claims and is appealable” would be clear 

and unequivocal finality phrase); see also Bella Palma LLC v. Young, 601 S.W.3d 799, 801 (Tex. 

2020) (per curiam) (“Although no ‘magic language’ is required, a trial court may express its intent 

to render a final judgment by describing its action as (1) final, (2) a disposition of all claims and 

parties, and (3) appealable.”).
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order must be appealed and reversed.” 39 S.W.3d at 206; see also Bella Palma, LLC v. Young, 

601 S.W.3d 799, 802 (Tex. 2020) (per curiam) (“Irrespective of its legal completeness or 

correctness, the . . . judgment was final and appealable because there was no question the trial 

court intended it to be so. If the final judgment is deficient, the remedy comes by appeal, not by 

the deprivation of appellate jurisdiction.” (citation omitted)). In other words, an appellate court’s 

decision that a trial court has committed reversible error cannot alter the nature of the trial court’s 

judgment or order, which is either a final and appealable order at the time the trial court renders it, 

or it is not. See In re Elizondo, 544 S.W.3d 824, 828 (Tex. 2018) (orig. proceeding) (per curiam) 

(“Lehmann’s test holds that an order is final if it ‘states’ that it is—not if the court intends it 

to be.”).

The guiding principle at issue here—that clear and unequivocal finality language 

renders an order final and appealable even if the order is potentially erroneous because it does not 

properly dispose of all claims and parties—holds true in the severance context. Older Texas

Supreme Court authorities also require us to treat the order as final and appealable despite its 

erroneous severance of a claim. See Schieffer v. Patterson, 433 S.W.2d 418, 419 (Tex. 1968) (per 

curiam) (reversing and remanding court of appeals’ dismissal of appeal for want of jurisdiction 

based on erroneous severance order because dismissal conflicted with supreme court’s holding in 

Pierce v. Reynolds, 329 S.W.2d 76, 78-79 & n.1 (Tex. 1959)). In Pierce, the supreme court 

determined that the trial court’s severance order, which was erroneous because it improperly split 

a single cause of action into two parts, did not deprive the appellate court of jurisdiction to consider 

the merits of the appeal of the severed part of the case. 329 S.W.2d at 78-79 (holding it is within 

trial court’s judicial power to determine cause is severable and to sever it, even if that conclusion 

and action are erroneous, and thus that judgment fully adjudicating one of severed causes is 
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appealable). The supreme court concluded that the appealability of a judgment should not turn 

upon whether the action is severable, and it additionally stated, “We do not think a judgment which 

possesses all of the attributes of finality can be regarded as interlocutory merely because the court 

may have erred in ordering a severance which it had the power to grant.” Id. at 78-79 & n.1 

(emphasis added).

The en banc Court notes that the supreme court in Pierce did not consider the 

propriety of the severance because the defendant had not objected to it “and instead proceeded to 

the merits of the appeal.” Slip op. at 8 n.4 (citing Pierce, 329 S.W.2d at 78). However, before 

proceeding to the merits of the appeal, the supreme court noted that the rule against splitting causes 

of action “is for the benefit of and may be waived by the defendant, and does not in any way limit 

the power of a court to hear and determine several suits instituted by a plaintiff for the recovery of 

different parts of a single cause of action.” Pierce, 329 S.W.2d at 78. The court concluded that if 

a severance has improperly separated one cause of action into two parts, “[a] judgment which fully 

adjudicates one of the severed causes is appealable even though the entire controversy as it existed 

prior to the severance is not determined thereby.” Id. at 78-79. Thus, while Pierce does not require 

an appellate court to consider the merits of an appeal if it determines that the severance was 

improper, see slip op. at 8 n.4, neither does it preclude an appellate court from considering the 

merits of an appeal if it determines the severance was improper, see Pierce, 329 S.W.2d at 79-80 

(considering merits of trial court’s summary-judgment ruling).

I would proceed as our sister court in Waco did when it considered the merits of 

the other issues on appeal in a case involving a trial court’s judgment that granted one party’s 

summary-judgment motion and severed another party’s compulsory counterclaim into a new 

cause. See Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 652-53 (Tex. App.—Waco 2000, pet. 
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denied). The Tenth Court of Appeals agreed with those courts of appeals that conclude that error 

in granting a severance does not divest a court of appeals of jurisdiction, and it concluded, “This 

judgment was final.” Id. at 652. It further held,

We have the duty to review all aspects of a final judgment. Thus, we hold that our 

finding of an improper severance does not deprive us of jurisdiction. An improper 

severance is trial court error, and our determination of error does not prevent us 

from considering the remaining issues on appeal.

Id. It then proceeded to consider the other issues on appeal even after determining that the 

severance constituted an abuse of discretion.2

I also disagree with the Court’s conclusion that it is more efficient for the parties 

and the court system to abate the appeal for the trial court to render judgment now on the attorneys’ 

fees claim, especially when the parties assert they have reached a stipulated resolution of that issue. 

See slip op. at 8. In my view, as with any other appeal from a final summary judgment, even 

knowing that we will ultimately reverse and remand on the wrongfully severed attorneys’ fees 

issue, we should review the merits that have been presented to us on appeal. See Tex. R. App. P. 

43.2(a), (c), (d) (allowing courts of appeals to affirm trial court’s judgment in whole or in part, 

reverse and render in part, and reverse and remand in part); id. R. 43.3(a) (when reversing trial 

2 However, the Tenth Court vacated the severance order, reversed the summary judgment, 

and remanded the cause for further proceedings consistent with the order. See Rucker v. Bank One 

Tex., N.A., 36 S.W.3d 649, 654 (Tex. App.—Waco 2000, pet. denied). In my view, under Texas 

Rule of Appellate Procedure 43.2(e), if a court vacates a judgment, it must dismiss the case. 

Instead, I would reverse the severance order but only after considering the other issues raised in 

the appeal. Cf., e.g., Nicor Expl. Co. v. Florida Gas Transmission Co., 911 S.W.2d 479, 483 (Tex. 

App.—Corpus Christi–Edinburg 1995, writ denied) (holding that “[i]mproper severance is trial 

court error, but it does not prevent us from considering the case on appeal. Accordingly, if the 

severance constitutes reversible error, we should reverse and remand, not dismiss for want of 

jurisdiction,” but declining to consider other issues raised on appeal).
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court’s judgment, courts of appeals must render judgment trial court should have rendered, except 

when remand is necessary for further proceedings). Accordingly, I would consider the merits of 

the summary-judgment claims upon which the probate court rendered its final summary judgment 

before reversing and remanding the improperly severed attorneys’ fees claim.

Therefore, I dissent from the Court’s conclusion that the proper procedure here is 

reversing the trial court’s severance order—without remanding the case or otherwise rendering 

judgment—and abating the appeal to allow the parties to obtain another “final judgment” from the 

probate court.

__________________________________________

Gisela D. Triana, Justice

Concurring and Dissenting Opinion by Justice Triana; Joined by Justice Kelly

Filed: August 12, 2022