### 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 A ffordable 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. Bertucc i, 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

O P I N I O N A N D O R D E R We withdraw our opinion s and judgment of January 28, 202 2 , and substitute the following opinions and judgm ent

. Appellant and cross

- appellee Christopher F. Bertucci (the Executor), as executor
of the estate of Anthony R. Bertucci, deceas ed, and derivatively on behalf of : American Affordable Homes & Properties, Inc. (AAHP); American Affordable Homes, LP (AAH); T own
Vista Deve l opment, LLC (TVD); Town Vista Terrace, Inc. (TVT); and MidCrowne Senior SLP, LLC (MCS) (collectively, the Companies ), fil ed a notice of appeal complaining of the probate2 court ’ s order gran ting summary judgment in favor of appellee and cross - appellant Euge n e L.
Watkins . Wat k ins cross - appeal ed from the court ’ s order severing his claims against the Companies and transfer r ing t hem back to the Travis County d istrict c ourt from which the cause was transferred upon Anthon y ’ s death. A panel of this Court held th a t the severance wa s
im proper, vacated the se verance, and dismissed the appeal for want of jurisd iction. See Bertuc ci

v. Wa tkins , No. 03

- 20

- 00058

- CV, 2022 WL 261563 (Tex. A p p.

— Au stin Jan. 2 8, 2022, no p et. h.) (mem. op.) (citing Dalisa , Inc. v . Bradford , 8 1 S.W. 3 d 87 6 (Tex. App.

— Austin 2002, no pet.) ) , withdrawn , __ S.W.3d

__ , 2022 WL __, at *1 (Tex. App.

— Austin [date], no pet. h.)

. The parties then filed a joint motion for reconsiderat ion en banc. See Tex . R. App. P. 49.7. T h is
Court sitt in g en banc wi l l overrule Dalisa and abat e the appeal to al l ow the pa rties to obtain a final, appealable judgment.

FACTUAL AND PROCEDURAL BACKGROUND
In 2001 , Watkins and Anthony formed a partnership to build low

- income housing ;
th at partnership eventually in cluded the f i ve C ompanies

. Watkins an d Ant hony were lim it ed partners of AAH and s ha reholders of its general partner, AAHP , and t his suit began when
entiti es handling the sale of AAH ’ s property filed petitions in interpleader against AAH and
AAHP in Trav is County d is t r ict co urt, seeking to dep osit the sale procee ds in to the court ’ s regi st ry. Watkins intervened, seeking a declaratory judgment as to his rig hts to some of the
funds under the AAH partnership agreement. Watkins, individually and on behalf of A AH and
AAHP , also filed clai ms against Ant hony as a third

- party defendant , seeking a declaration that
the AAH partnership agreement requires the funds to be distribut ed to the limited partners. Anthony, individually and on behalf of the Companies, respo nd ed with clai m s against Watkins3 for civ il theft unde r the T exas Theft Liability Act ( TTLA) , see Tex. Civ. Prac. & Rem. Code §§ 134.00 1

- .005; breach of fid uciary duties; breach of the duty to account; equitable disgorgement and forfeiture; and breach of co nt ract. Watki n s sought attorney ’ s f e es for defending agains t the TTLA theft claims. See id

. § 134.005(b) (providing for recovery of
attorney ’ s fees). Anthony died in 2 01 7, at which point the case was transferred to the probate

court , and Christop her , the e xec utor of A n thony ’ s estate , was subst itu ted for Anthony. Watkins
filed additiona l claims

— including for breach of contract and equitable resti tution or unjust
enrichment

— against the Executor, TVD, and AAHP, later nonsuit ing his claims against the
Execut or
. In 2019, t he probate court grant ed summary judgment in Watkins ’ s favor on all t he
Executor ’ s claims and about a month later signed the Final Order , stating in part:

1. [Watkins] , having nonsuited (without prejudice) all of his prior c auses of action agai ns t C hristophe r F. Bertucci, individu all y and as Executor , a nd the Court having conf i r

med such dismissal (without prejudice ) by Order dated Octo ber 31, 2018, t he Court hereby severs and transfers back to the Travis County District Court for further disposi ti on , all of W a tkins ’ Claims t hat
re main pending, including Watkins ’ Claim for reaso na ble and necessary attorney ’ s fees, expenses, and costs in defending against the Executor ’ s Claim asserted pursuant to Tex. Civ. Prac. & Rem. Code § 134.005(b) and any val id d efen ses or offsets ther eto.

. . . .

3. The Court, ha ving o verruled the E xecutor ’ s Cl aims against Watkins, . . . retains jur isdiction in this c ause over such claims to render a final appealable judgment as to same

. . . .

4. Subject only to consummation of th e tr ansfer ord e red as provid ed above , a l l prior orders grant ing Watkins relief or de ny ing the Executor ’ s relief .

. . are now considered final a nd appealable. This Order therefore disposes of all4 issues retained by this Court as between the parties, and i s a final judg m ent as to the Executo r ’ s Claims.

The Executor appeal ed the granting o f summary judgment, and Watkins cross - appeal ed the

severance and transfer of his claim for TTLA attorney ’ s fees

. In January 2022, a panel of this Court held that the seve ra nc e of Wat ki n s ’ s claim
for attorne y ’ s fee s was improper be cause the claim would no t be “ the proper subject of an independently asserted lawsui t

. ” Bertucci , 2022 WL 261563 , at *2 (quoting State v

. Morello , 547 S.W.3d 881, 88 8

- 8 9 (Tex. 2018) ( s everance pr op er when cont r oversy involves mult ip le

cause s of action, se vered claim c ould be pro pe r subject of independently asserted lawsuit, and
severed claim is not so interwoven with remaining action that they involve same fac ts and
issues ) ) ; see also Huff v. F id

e lity Union Lif e Ins. Co. , 312 S.W.2d 493, 501 ( Tex. 1958) (claim
for statut ory attorney ’ s fees is dependent on recovery on merit s and cann ot be maintained as
separate trial

- court action).
B ound by our prece dent in Dalisa , the panel , wit h Ju stice Triana dis sent ing, he ld

t hat the im prope r seve rance “ affect [ed] appellate jurisdiction , ” vacated t h e severance order “ to
the exten t that it severed the TT LA attorney fee claim, ” and dismissed the appeal for lack of jurisdict ion. Bertucci , 2022 WL 261563, at *3

- 4

. Th e pa rties t h e n filed a J oint M otion for E n
B anc R e consid erati on, asking th is Court to overrule Dalisa , noti ng the Texas Supreme Court ’ s

recent holding in In re Elizondo , 544 S.W.3d 824 (Tex. 201 8) (orig. proceeding)

. 1 T he parties

1 In In re Eli zondo , the trial court sig ned a o n e - page or der that w as supposed to address only o n e issue but includ ed “ a fina lit y ph rase that stated: ‘ This ju dg m ent is final, disposes of all
c laims and al l parties, a nd is appealable. All rel ief not granted he rein is denied. ’ ” 544 S.W .3d 82 4 , 825 (Tex

. 201 8). When Elizo ndo notice d the finality langu a ge well beyond thirt y days aft er t he or der was signed , he as ke d the trial court to sign an ame nded order o mitt ing the finality phrase, a nd the c ourt did so
. Id

. The de fendant s then sough t mand a mus relief , a divide d court of5 informed th is Cour t t ha t , in an atte m p t to remedy possible juri sdictional p rob l e m s in this case , the y have resolved the ir remaining di sputes th rough a stipula t ion “ as to the amount of fees each side will receive from the other, and the mechanism by which they will automatic al ly be
determined

. ” 2 This s tipulation was not before the tri al court whe n it ren dered judgment and
issued relate d orders sought to be review ed here and is therefore not in the trial

- court record presented for our review

. The stipulation does not , on its own, resolve the j u risdiction al problem

p resented in this appeal.

DIS CU SSION
The members of th is Cour t unanim ously agree th at the Dalisa opinion was wrongly deci ded insof ar as it hold s that a reviewing court mus t dismiss an appeal when it
determines that a se verance rende r i ng an interl o cut ory order final and app e alable was impro per
. In Dalisa , the majo rity of the p anel , after de termin ing that the trial court had abused its discre tion by severing B radford ’ s claim for declarato ry relief from his claim for attor ney ’ s fees un d e r the Uniform Declaratory Judgments Act and from D alisa ’ s counterclaims, whic h we re “ interwo ve n

to an exte nt that they involve the same facts and issues , ” vacat ed t he severance and then , “ [f]or

appeals gra nted relief , and th e Texas Supreme C ourt agree d, hold ing t hat although the orde r “ left lots of relief not granted

— nam ely, all other relief E lizondo sought against the Builders, ” t he inclusion of the finali ty p hras e made the o rder “ fin al

— ‘ e r rone ous , but final

. ’ ” Id . at 825 , 82 9

. El izondo , who had “ ha d t hirt y day s to examine the one

- pa g e order and notice that it incl uded a final ity phrase , ” “ should have trea ted ” the order as final , and t he court conclude d “ that the original o r der ’ s fin ality phra se was clear, unequivocal, and neither ambiguous nor absur d , ” and that t he amended order wa s v oid. Id . at 827, 829.

2 Although the p arties assert that the stipulation remov es ju risd ictiona l impediments , Watkins has not to o ur knowled g e nonsuited or obtained final resolution on the merits of the attorney ’ s fees claim , so a t least one part of a cause of action that is on appeal here remains pending at the trial

- court level.6 want of an ap pe alable judgment, ” dismissed Dal i sa ’ s appeal f r o m the summar y judgment in
Bradford ’ s favor. 81 S. W.3d a t 881

- 82. However, the supre me court has b een cl ea r in it s instruction that an order that

ren der s a jud gment final and appealable, albeit improperly, bes tows jurisdiction on the courts of appeals t o c onsider the prop riety of the trial court ’ s actio n. Se e Elizondo , 544 S.W.3 d at 829 ( “ When a trial court i ssues a n order or judgment without a conventional tri al on the merits,
Lehmann remains the rule for identifying whether the orde r or ju dgment is f i na l

. It is a rigid rule, but that is why it is use ful. ” ) ; Lehma nn v. Har

- Con Corp. , 39 S.W.3d 1 91, 2 06 (Te x. 2001) ( if or der ’ s language is clear and unequivocal, “ it must be given effect despite any other
ind ications that one or more pa rties d id not inte n d f or the judgment to be final ; ” “ express adju dicati on of all pa rties and claims i n a case is no t inte rl ocutory merely because the record
does not aff ord a legal basis for the adjudication , ” and such orders “ must be appealed and
reversed ” ); Pi e rce v. Reyn o ld s , 329 S.W.2d 76, 78 ( Tex. 1959 ) ( “ No matter how erroneo us its

c onclusion and action may hav e been, i t was withi n the jud i cial power of the court to determine
tha t the cause was severable and to sever the same acco rdingly. The order of seve r ance is
sub j ec t to being set aside on appeal, but until this is done i t effe ct ively separates the controve rsy
into two c auses. ” )

. A s e xplained by the T hirteenth Court of Appea ls , “ an imprope r sev erance does not rob this court of jurisdiction to consider a case; othe r wi s e we could not consider
whether the severance itself wa s in f act improper

. . . . Accordingly, if the seve rance c on stitu tes
reversible error, we should reverse and remand, not dismi ss for want of jurisdiction. ” Nicor Expl. Co. v. Fl orid a G a s Transmiss i on Co. , 911 S.W.2d 479, 4 8 2 (Tex. App.

— Corpus Christi

Edin burg 1 995, writ denied)

.7 The D alisa court erroneous ly va ca te d the severance orde r and dismissed the appeal

— after having e xercised appellate jurisdiction to review the propri ety of the s e verance
ord e r
. 81 S.W.3d at 88 2

. Gi ven the supreme court ’ s rei te rate d guid ance that an order can be
made fi nal a nd app ealabl e th roug h an error , t h is Court sitting en banc overrules Dalisa in sofar as
it hold s that a finding of an improper seve rance dives t s thi s Cour t o f jurisdiction over the appeal
such that the pr oper proc edure is to vacate the severance and dismis s the ap pe al fo r w ant o f jurisdiction

. The members of th is Court diverge on the C ourt ’ s next s tep s with this appeal. Many courts of appeals h a ve held tha t , a ft er determining a n order was wrongly

ren dered final by an i m proper severance , the underlying judgment or order i s interlocutory and, thus, that the appe llate court lack s jurisdicti on t o reach the issues challenged in the int er locutory
order or judgmen t

. See, e.g ., Alanis v. Wells Fargo Bank Nat ’ l Ass ’ n , No. 04

- 1 6

- 0 01 21

- CV,
2016 WL 7 234047, at *2 (Tex. App.

— San Anton io Dec. 14, 2016 , no pet.) (mem. op.) ( “ Having
determined the severanc e wa s improper, we do not reach Alanis ’ s re maining issues

. ” ) ; Louste a u

v . Noriega , No. 01

- 15

- 00254

- CV, 2016 WL 45 37371, at *6 (Tex

. Ap p.

— Houst on [1st D i st.] Aug. 30, 2016 , pet. denied ) ( me m. op.) ( “ Havin g concluded that the trial court erred in entering
it s se verance order, we further conclude th at the underlyin g j udgment i s i nterlocutory and, thus, we lack jurisdict ion to reach Lous t eau a nd Cla nton ’ s fi r st, second, t hird, and fourth issu es
. . . . ” ) ; Ozcelebi v. Chowdary , No . 13

- 13

- 00659

- C V, 2015 WL 6119495, at *5 (Tex. App

. — C orpus
Christi

- E di nb urg Oct. 15, 2015 , no pet.) ( me m . op .) (s ame ) ; Tilg er v. Samson Homes, I nc. , No. 14

- 97

- 0361

- CV, 1999 WL 160995, at *2 (Tex. Ap p.

— Hou ston [14th Dist.] Mar. 25, 1999 , p et. denied ) ( not d e signated for publi cat ion) (same) ; Nicor Expl. , 911 S.W .2d at 4 83 (same); s e e8 al

so In re Hoover , Bax & S lova c ek, L.L.P. , 6 S.W.3 d 646, 649 (Tex. App.

— El Paso 1999 , orig. proceeding ) ( simil ar )

. 3

J u stice Triana, with Justi ce K elly joining, would proceed im me diately to consider
the m erits of the Exec utor ’ s argumen ts, which is what the parties ask th is Cou r t to d o. Because
the sever ance was im proper , howev er, we conclude along with the cases just disc ussed that the summary judgment is n ot final

. 4
In the u nu sual context of this case, though , we opt against reversin g the entire judgment immediately and fol l ow a p ath that offers more effici en cy f or t he p ar ties and the court
system. The unanimous court agrees that the trial court erred by severing the attorn ey ’ s fees

3 But s ee Bird v. Lubricants, USA, LP , No. 2

- 06

- 061

- CV, 2007 W L 2460352, at * 3 ( T ex. App.

— Fort Worth Aug. 31, 2007, pet. den ied) (mem. op. ) (defend ants did not per fe ct ap p ea l and thus could not challenge propriety o f severance order ; however, “ even assuming , for a rgumen t ’ s sake, that the severance order wa s imprope r, the alleged er ror does not deprive us of jurisdiction over th e appeal ” ) ; Rucker v. B ank O ne Tex., N.A. , 36 S .W .3d 649, 652 (Tex. Ap p.

— Waco 2000, pet. de nied) (noting that “ court s of appeals are divided on th e p roper disposition of an a ppeal fro m a case in which a severa nce was improperly grante d ” ; stating that becau se judgment was final, cour t had “ the duty to r ev iew all aspects of a final judgment ” ; and holding that “ improper severance is trial court error, and our determin ation of err or does n o t preven t u s from conside rin g the remaining issues on appeal ” )

.

4 In Pie rce v. Reyno lds , the Texas S upreme C ourt discu s se d “ whether a court ha s the power to sever one entire cause of action into two or mor e parts and r end er a separate final judgm ent dispo s ing of e a ch p a r t , ” even i f improperly, before going on to consider the m erits of the appeal. 329 S. W .2d 76, 78 (Tex. 1 95 9). In its discussio n, t he sup reme cour t stated that the appealability o f a judgmen t cannot depe nd upon whether the action i s s everab l e becaus e suc h a rule wou ld lead to confusion and uncertainty

. Id

. Because the tri al court had jur isdiction over the pa rties and the controv ersy a nd its order “ [ d id ] not violate any prohibition or manda tory pr ovision , ” the su preme court explained, th e s e verance w as within i ts “ judicia l power ” although
erroneous
. Id

. However, because the def end ant “ did not object to the seve r an ce, and is therefore not in position to complain of a mere error in granting the sam e , ” t he sup reme court did not consider th e p r opriety o f the seve r ance and in stead proceeded to the merits of the appeal. Id

. But in Morel lo v. State , the T e xas Supreme C ourt held that a part y may challenge an improper sever ance on appeal even when no pa rty had object ed at trial because “ challe nge s to lack o f subject matter jurisdiction may be rais ed for the first time on appeal. ” State v. Morello , 54 7 S.W.3d 881, 888

– 89 (Tex. 2018)

.9 claim , which is not a standalone claim for relief. See Huff , 312 S.W.2d at 50 1

. T he re is n o disp u te presen ted or appar ent regarding the pro bate court ’ s jurisdiction to have issued the
severance order ; its improper s everance order is merely erro ne ous or voidable, not void , and is correctable through the ordinary appellate process es or oth er prop e r pro c eedings

. See Reiss

v

. Reiss , 118 S.W.3d 4 39, 443 (Tex. 200 3) (citing Mapco, Inc. v. Forrest , 795 S.W.2d 700, 703 (Tex. 1990) )

. The rules of proce du re prohibit us from affirming, reversing, or di smis si ng an appeal if the trial court ’ s errone ous act i on or failure t o ac t preven ts the proper present ation of the

case to us and if the trial cour t can corre ct its acti o n or failure to act. Tex. R. App. P. 4 4. 4(a). If such remediable error exists, we “ m ust di r ect the trial court to correct the erro r ” and “ then

p roceed as if the erro neous a ction or failu re to act had not occurred. ” I d. R. 44.4(b). Rule 27.2 provides that “ [t]he appellate court may allow an a pp ealed order that is not final to be modified

so as to be made final and may allow t he modi fied or d er an d al l proce ed ings r elatin g to it to be
include d in a supplemental record. ” Tex. R. App. P. 27.2.
T he Texas Supre me Court invoked Ru le 27.2 in McNally v

. Guevara , a case in
which the tria l court ’ s summary j udg ment d id no t address a p ar ty ’ s cla im for attor n ey ’ s fees

. 52
S.W.3d 19 5 , 195

- 96 (Tex. 2001)

. A divided panel of t his Court had held that the judgment was
final because the defendants had aba ndoned th ei r claim by failing to include it in their summary judgment motion and becau se t he trial court ’ s awa r d o f costs i n dic ated finalit y and, implicitly,
de nial of the attorney ’ s fees claim

. Mc Nally v. Guevara , 989 S.W.2 d 380 , 382 (Tex. App.

— Austin 1999 ) , rev ’ d , 52 S.W.3d at 1 95

- 96

. This Court then affirmed the summary judgment. Id.
at 383

. T he Texas S upre m e C ourt reversed , h o ld ing th at the omis si on of the attorney ’ s fees
cla im from the motion did not waive the claim because the party might have mov ed for pa r t ial

summary judgment and that the award of costs did not , alone, make the judgment fina l.10 Mc N

ally , 52 S.W .3d at 196

. The s upre me c o urt concluded t hat th e judgment was not final or appealable, r eversed this Court ’ s judgment, and remanded to this Court “ to determine whether to abate the appeal to permit the trial cou rt to render a fi nal judg ment, T ex. R

. Ap p. P. 27.2 , o r to
dismiss the appeal for want of jurisdictio n. ” Id. 5 Although we and ot her courts of appeals ha ve h eld that a Rule 27.2 abatement is

n ot available when a n unadjudicat ed claim for attorney ’ s fees i s conte sted and its resoluti on

m ight inv o lve an eviden tiary procee ding and other rulin gs, 6 the parties in this case assert they
hav e reached “ a sti pulated resolution of the attor ney ’ s fees iss ue
. ” T h a t stipulation will make the
trial court ’ s rendition of ju dgme nt on the a ttorney ’ s f ees claim mi n isterial or p erfunctory a nd
suitable for resolution on aba tement of this ap peal to make th e judgment final and to award
attorney ’ s fees as r equir e d und er Texas Civil Practice and Reme dies Code S ection 134.005(b)

. Under these unusua l ci rcum stan ces , r ather t ha n ei ther (1 ) reversing and
remand ing the entire c ase for resolution of the attorney ’ s fe es issue , which would requir e the parties to file new n otices o f appeal and brie fing if t hey remain dissatisfied wi th any of t he probate c ourt ’ s rulings, or (2) cons i dering summar y -

judgment m erits issues on appeal without jurisdiction over the appeal and kn owing that we must reverse f or re ndition of judgment on

atto rn ey ’ s fees regardles s of our d ispo sition of the merits issues , we sua sponte abate the appe al
f or thirt y days t o allow the par tie s to obta in from the prob ate court a n appealable order or

5 On r emand, this Court dismissed the appeal on appellant ’ s motion

. McNally
v. Guevara , No. 03

- 97

- 00380

- CV, 2 001 WL 1548740, at *1 (Tex. App.

— Aus tin De c. 6, 2001 , no p et. ) (mem. op.).

6 See , e .g. , Hammer v. Morgan , No. 03

- 21

- 00149

- CV, 2021 WL 4483505, at *2 (Te x. App.

— Austin Oct. 1, 2021 , no pet.) (mem. op.); Trane US, Inc . v . Su blett , 501 S.W.3d 783, 787 (Tex. A pp.

— Amarillo 2 016 , no pet. ) ; Parks v. DeWi tt C nt

y

. Elec

. Co

- op, Inc

. , 112 S.W.3d 157, 163

- 64 (Tex. App.

— Corpus Christi

– Edinburg 200 3, no p et .)

.11 judgment . On c e that occurs, the appeal may be reinsta ted f or our consideration of the parties ’ briefing on the merits

.

C O NCLUSI ON
T h is Court s itting en b anc ov e rrules Dali s a in sofar as it hold s that when a reviewing cou rt determines that a severance render in g an interl o cut ory orde r final and app e alable
was i mproper , the reviewing court must vacate the severance , determine tha t it has lost jurisd iction over the a p peal , and d i smiss the appeal for want of jurisd ict ion. We hold that the

severance of the attorney ’ s fees issue w as impro per
. We abate th e a ppeal for thirty days

. The parties are directed to file a status report

or a mot ion to re instate on or bef ore th i r ty days from the date o f this order ; the parties may file a motion requesting more time i f needed to obtain a n appealabl e order or judgment

. If a n appealable order or j udgment i ncluding resolution of the attorney ’ s fees i ss ue is filed in a supplem ental c l erk ’ s record , upon a motion for reinstat ement, the case will b e reinstated for
consider ation of the merit s as b riefed by the parties

. If no appealable order or ju d g ment is filed,

a majority of the en ban c C ourt will rever se and remand t he case to the pr o b ate court.
O r dered on August 12 , 2022.

___________________________ _________ ______ Darlene Byrne , Chie f Justice

Be fore Chief Justice Byrne, Justic e s Goodwin, B aker, Triana, Kelly, and Smith Concurring and Dissenting Opini o n by Justice Triana; Join ed by Ju stic e Kelly