Opinion
03-20-00058-CV
01-28-2022
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, v. Eugene L. Watkins, Jr. Cross-Appellee, Eugene L. Watkins, Jr. 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 Appellee,
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C-l-PB-17-000937, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING
Before Justices Goodwin, Triana, and Smith
MEMORANDUM OPINION
MELISSA GOODWIN, JUSTICE
Christopher F. Bertucci (the Executor), as executor of the estate of Anthony R. Bertucci, deceased, and derivatively on behalf of American Affordable Homes & Properties, Inc. (AAHP); American Affordable Homes, LP (AAH); Town Vista Development, LLC (TVD); Town Vista Terrace, Inc. (TVT); and MidCrowne Senior SLP, LLC (MCS) (collectively, the Companies), appeals from the probate court's summary judgment on the Executor's five claims against Eugene L. Watkins: civil theft in violation of the Texas Theft Liability Act (TTLA), see Tex. Civ. Prac. & Rem. Code §§ 134.001-.005; breach of fiduciary duties; breach of the duty to account; equitable disgorgement and forfeiture; and breach of contract. Watkins cross-appeals from the probate court's severance of his TTLA attorney fee claim and requests remand to the probate court. For the following reasons, we vacate the severance order to the extent that it severed the TTLA attorney fee claim and dismiss the appeal for lack of jurisdiction.
For convenience, we refer to the claims brought by the Executor both in his capacity as executor of Anthony's estate and in his derivative capacity on behalf of the Companies as "the Executor's claims."
BACKGROUND
This suit originated when lawyers and title companies handling the sale of AAH's property filed petitions in interpleader against AAH and AAH's general partner AAHP in Travis County District Court, seeking to deposit the proceeds from the sale in the district court's registry. Watkins and Anthony were limited partners of AAH and shareholders of AAHP. Watkins intervened, seeking declaratory judgment as to his rights to a proportion of the funds under the AAH partnership agreement. Next, Watkins, individually and on behalf of AAH and AAHP, filed claims against third party defendant Anthony, seeking declaratory judgment that the AAH partnership agreement requires distribution of the funds to the limited partners. In response, Anthony, individually and on behalf of the Companies, filed claims against Watkins, ultimately raising the five claims on which the probate court entered summary judgment.Watkins then sought attorney fees in defending against the TTLA civil theft claims. See id. § 134.005(b) (providing for recovery of attorney fees).
Because the parties' dispute on the merits-which we do not address here-raises an issue of whether some of Anthony's claims against Watkins properly constitute "counterclaim[s] or cross claim[s]" for the purpose of limitations, see Tex. Civ. Prac. & Rem. Code § 16.069, we generically refer to "claims" rather than distinguishing among claims, counterclaims, and cross claims.
After Anthony's passing, the probate court ordered that the cause underlying this appeal, which was then pending in the district court, be transferred to it and that Anthony's son Christopher, as Executor, be substituted for Anthony. Watkins also filed additional claims- including breach of contract and equitable restitution or unjust enrichment-against the Executor, TVD, and AAHP, although he later nonsuited his claims against the Executor.
After granting summary judgment in Watkins's favor on all of the Executor's claims, the probate court issued an Order Transferring Certain Claims and Registry Funds, and Entry of Final Judgment as to All Retained Claims (the Order), stating in part:
[T]he Court hereby severs and transfers back to the Travis County District Court for further disposition, all of Watkins'[s] Claims that remain pending, including Watkins'[s] Claim for reasonable 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 valid defenses or offsets thereto.
[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 final judgment as to the Executor's Claims.
The Executor appeals the summary judgment, and Watkins cross-appeals the severance and transfer of his TTLA attorney fees claim.
After Watkins filed his cross-appellant's brief, requesting that this Court reverse the severance of the TTLA attorney fee claim and remand the claim to the probate court, the Executor filed a letter stating that he does not oppose remand of that claim to the probate court or the district court.
DISCUSSION
In his cross-appeal, Watkins argues that the probate court abused its discretion in severing his TTLA attorney fee claim from the Executor's TTLA claim and transferring the attorney fee claim to the district court because the claim would not be the proper subject of an independently asserted lawsuit. See Tex. Civ. Prac. & Rem. Code § 134.005(b) (providing that party "who prevails" in TTLA claim shall be awarded attorney fees); State v. Morello, 547 S.W.3d 881, 888 (Tex. 2018) ("Severance is proper when (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of an independently asserted lawsuit, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues."). Nevertheless, Watkins argues that "[a]lthough the severance was improper, it does not affect this Court's jurisdiction." We agree that the severance of Watkins's TTLA attorney fee claim from the Executor's TTLA claim was improper but disagree that the improper severance does not affect this Court's jurisdiction. Moreover, "subject-matter jurisdiction must exist before we can consider the merits, a challenge to it cannot be waived, and 'we have an obligation to examine our jurisdiction any time it is in doubt.'" Texas Propane Gas Ass'n v. City of Houston, 622 S.W.3d 791, 797 (Tex. 2021) (quoting Pike v. Texas EMC Mgmt, LLC, 610 S.W.3d 763, 774 (Tex. 2020)).
The Texas Supreme Court recently addressed the jurisdictional nature of an improper severance in Morello, although neither party cites the case before this Court. The Morello Court held that a party may challenge an improper severance even when no party had asserted the objection below because "challenges to lack of subject matter jurisdiction may be raised for the first time on appeal." 547 S.W.3d at 888. Thus, the Morello Court considered the question of the propriety of the underlying severance as implicating subject matter jurisdiction. The Morello Court concluded that the severance at issue in that case was proper-although the two cases were "factually intertwined," they were "not so interwoven as to override proper severance"-and "[t]hat being so, the judgment against [Morello] was not interlocutory, but final and subject to appeal." Id. at 889. Here, in contrast, Watkins's TTLA attorney fee claim fails to satisfy one of the essential elements for a proper severance: "[T]he severed claim is one that would be the proper subject of an independently asserted lawsuit." Id. (citing F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007)); see also Pierce v. Reynolds, 329 S.W.2d 76, 79 n.1 (Tex. 1959) ("Severance of a single cause of action into two parts is never proper and should not be granted for the purpose of enabling the litigants to obtain an early appellate ruling on the trial court's determination of one phase of the case."); Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 881 (Tex. App-Austin 2002, no pet.) (holding that "trial court abused its discretion when it severed Bradford's claim for declaratory relief from his claim for attorney's fees under the Act"). Thus, here, in contrast to Morello, the judgment is interlocutory and not final and subject to appeal. See 547 S.W.3d at 889; Dalisa, 81 S.W.3d at 881 ("To be appealable, Bradford's summary judgment must dispose of all parties and all issues before the trial court. . . . The summary judgment awarding Bradford declaratory relief does not satisfy this requirement because the severance order is the result of an abuse of discretion. The invalid severance is prejudicial because it converted into a final judgment a judgment that is interlocutory.").
Before briefing was filed in this appeal, the Executor filed an opposed motion for clarification, stating that "[i]n preparing for the appeal, [the Executor's] research turned up judicial decisions that seem to call into question this Court's subject matter jurisdiction in light of the interdependence of issues between the dismissed claims to the registry funds and the Remaining Claims to those same funds in the district court." Watkins opposed the motion, responding that "[w]hile couched as a Motion seeking clarification of whether the judgment in the Court below is final, [the Executor's] Motion actually seeks to have this court determine the merits of [the Executor's] appeal in pieces-first, a motion to challenge whether severance of the summary judgment denying [the Executor's] counterclaims was an abuse of discretion, and then ruling on the summary judgment itself," and that "this is an issue that should be reserved for full merits briefing and subject to the briefing length limitations, rather than through a time compressed motion practice." The parties neither cited State v. Morello, 547 S.W.3d 881, 888 (Tex. 2018), nor expressly discussed Watkins's TTLA claim for attorney fees; instead, they focused on whether Watkins's other independent claims are factually intertwined with the Executor's claims. And both parties noted that the Executor had not objected to the severance in the underlying proceedings and that they preferred that this Court address the merits of the appeal, if possible. Although we did not decide the jurisdictional issue at that time, we denied the Executor's motion for clarification.
We recognize that it is difficult to reconcile Morello and Dalisa with Pierce and Schieffer v. Patterson. Compare Morello, 547 S.W.3d at 888 (holding that complaint of severance below is challenge to subject matter jurisdiction that may be raised for first time on appeal although concluding that severance was proper, and "[t]hat being so, the judgment against him was not interlocutory, but final and subject to appeal" (emphasis added)); Dalisa, 81 S.W.3d at 881 (concluding that severance order was result of abuse of discretion and "prejudicial because it converted into a final judgment a judgment that is interlocutory," vacating severance order, and dismissing appeal for want of appealable judgment), with Schieffer v. Patterson, 433 S.W.2d 418, 419 (Tex. 1968) (per curiam) (applying Pierce and reversing court of appeals' determination that it lacked jurisdiction to consider appeal because of improper severance); Pierce, 329 S.W.2d at 79 n.l (noting that "rule against splitting causes of action" "is for the benefit of and may be waived by the defendant" and "we do not think the appealability of a judgment should be made to turn upon whether the action is severable"). However, the Dalisa Court expressly considered Pierce-although it did not directly address Pierce's holding as to appellate jurisdiction-yet still chose to consider the improper severance as affecting appellate jurisdiction. See 81 S.W.3d at 880 (citing Pierce, 329 S.W.2d at 79 n.l). Even if we were inclined to revisit the issue in Dalisa, "We may not overrule a prior panel opinion of this court absent an intervening change in the law by the Legislature or a higher court or by decision of this court sitting en banc." Connor v. Hooks, No. 03-19-00198-CV, 2021 WL 833971, at *8 n.11 (Tex. App.-Austin Mar. 5, 2021, pet. filed) (mem. op.) (quoting Lawson v. Keene, No. 03-13-00498-CV, 2016 WL 767772, at *4 (Tex. App-Austin Feb. 23, 2016, pet. denied) (mem. op.)). And the intervening decision by the Texas Supreme Court in Morello only lends further support to Dalisa. See Morello, 547 S.W.3d at 888 (citing Dalisa, 81 S.W.3d at 882, without disapproval).
We acknowledge that our sister courts have taken divergent paths. Some have chosen to conclude that an improper severance does not deprive an appellate court of jurisdiction. See, e.g., Hyde v. Hawk, No. 07-14-00059-CV, 2016 WL 2341256, at *2 (Tex. App.-Amarillo May 2, 2016, no pet.) (mem. op.) (noting in transfer case from Fort Worth court of appeals that "[m]ost significantly for our present purpose, the Fort Worth court of appeals is among the courts that has not adopted Dalisa's rationale" that "an erroneous severance deprives an appellate court of jurisdiction over an appeal of the judgment in the severed cause"); Levetz v. Sutton, 404 S.W.3d 798, 804 (Tex. App-Dallas 2013, pet. denied) ("Our determination that the severance order was erroneous does not deprive us with jurisdiction over the appeal."); Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 652 (Tex. App-Waco 2000, pet. denied) (noting split in authority and holding "that our finding of an improper severance does not deprive us of jurisdiction"); Bird v. Lubricants, USA, LP, No. 02-06-00061-CV, 2007 WL 2460352, at *3 n.8 (Tex. App.-Fort Worth Aug. 31, 2007, pet. denied) (mem. op.) (collecting authorities). Others have concluded that they have appellate jurisdiction to reverse the severance order and remand the case but that they lack jurisdiction to reach the other issues on appeal. See, e.g., Lousteau v.Noriega, No. 01-15-00254-CV, 2016 WL 4537371, at *6 (Tex. App-Houston [1st Dist] Aug. 30, 2016, pet. denied) (collecting authorities).
Finally, Watkins argues that "[t]here is nothing on the face of the Judgment that suggests [the Order] is not a final judgment; on the contrary, it disposes of all parties and issues and thus is a final judgment for purposes of appeal," citing In re Elizondo, 544 S.W.3d 824, 827-28 (Tex. 2018) (per curiam) (orig. proceeding); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200-08 (Tex. 2001). For summary judgments, the Lehmann rule is that the judgment "is not final unless (1) it actually disposes of every pending claim and party or (2) it clearly and unequivocally states that it finally disposes of all claims and parties, even if it does not actually do so." Matter of Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021) (emphasis added) (citing Elizondo, 544 S.W.3d at 828, Lehmann, 39 S.W.3d at 205). Here, however, the Order expressly states on its face, "[T]he Court hereby severs and transfers back to the Travis County District Court for further disposition, all of Watkins'[s] Claims that remain pending, including Watkins'[s] Claim for reasonable 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 that "[t]his Order therefore disposes of all issues retained by this Court." (Emphasis added.) Thus, the Order neither states that Watkins's TTLA attorney fee claim is "finally dispose[d] of nor does it actually dispose of that claim if the underlying severance was improper, according to Dalisa. Moreover, "in determining whether an order is final," Lehmann's guiding principle is "to ensure that the right to appeal is not lost by an overly technical application of the law," and "[a]n order must be read in light of the importance of preserving a party's right to appeal." 39 S.W.3d at 205-06. Applying Dalisa, the Executor's right to appeal would not be lost because the Executor still maintains the right to appeal after the probate court signs a judgment finally disposing of all claims, including those that were improperly severed.
On the issue of whether we have appellate jurisdiction over the Order, our precedent is clear. And Elizondo and Lehmann do not overrule Dalisa as they do not address Dalisa's central holding that governs here. Accordingly, following Dalisa, we vacate the probate court's severance order to the extent that it severed the TTLA attorney fee claim and dismiss the appeal for lack of jurisdiction. See 81 S.W.3d at 882.
Vacated and Dismissed for Want of Jurisdiction
DISSENTING OPINION
Gisela D. Triana, Justice
I respectfully dissent. In my opinion, the Texas Supreme Court's opinions in In re Elizondo, 544 S.W.3d 824 (Tex. 2018) (orig. proceeding), and Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), control the jurisdictional question presented in this case. In Elizondo, the supreme court reaffirmed that a clear and unequivocal order containing a finality phrase should be treated by appellate courts as final and appealable, even if the trial court has erroneously included finality language in an order that does not in fact properly dispose of all claims and parties. In re Elizondo, 544 S.W.3d at 826-28 (explaining that appellate court does not review record to determine whether all parties and claims are actually disposed of by order when order contains unambiguous finality language). The holding in Elizondo followed the court's earlier pronouncement in Lehmann:
[I]f the language of the order is clear and unequivocal, it must be given effect despite any other indications that one or more parties did not intend for the judgment to be final. 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.39 S.W.3d at 206 (emphasis added); 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 Lehmann, the supreme court sought to clarify how appellate courts are to determine whether a trial court's order or judgment is final and appealable if it is rendered after something other than a conventional trial on the merits. 39 S.W.3d at 192. The court held:
[I]n 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 (emphasis added). The court provided guidance on the type of language that would "unequivocally express[]" an "intent to finally dispose of the case": "A statement like, 'This judgment finally disposes of all parties and all claims and is appealable,' would leave no doubt about the court's intention." Id. at 200, 206. The court further instructed that "[a]n order must be read in light of the importance of preserving a party's right to appeal." Id. at 206.
The court also noted that there are some instances-"such as orders that resolve certain discrete issues in some probate cases"-in which an order may also be final for purposes of appeal even if it does not dispose of all pending parties and claims. Id. at 195. The supreme court's opinion in Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995), established the test for finality in probate proceedings. The court held in Crowson that 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. Id.
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 proceeding on the Executor's claims brought on behalf of the Estate and derivatively on behalf of the Companies against Watkins, while transferring Watkins's claims against the Companies back to the district court from which they had originated. 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.
In my opinion, this language satisfies the standard for clear and unequivocal finality language set forth in Lehmann:
But the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word "final". The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself. But if that intent is clear from the order, then the
order is final and appealable, even though the record does not provide an adequate basis for rendition of judgment. . . . A judgment that grants more relief than a party is entitled to is subject to reversal, but it is not, for that reason alone, interlocutory.Id. at 200; see also Bella Palma, 601 S.W.3d at 801 ("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."). Admittedly, the court in Lehmann was considering only cases in which one final and appealable judgment can be rendered rather than cases, like probate cases, in which multiple judgments that are final for purposes of appeal can be rendered on certain discrete issues. See 39 S.W.3d at 192. However, neither the court in Lehmann nor the court in Elizondo indicates that 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-should not apply to orders issued by probate courts. Likewise, nothing in Lehmann or Elizondo indicates that this principle should not apply if the order erroneously severs some claims. Indeed, if this were not a probate-court order rendering a final judgment on the claims decided by the probate court but severing and transferring other claims, and if it were instead merely an ordinary trial court's order that erroneously severed a claim but contained unequivocal finality language as to the severed claim, then in my opinion, Elizondo and Lehmann, as well as older Texas Supreme Court authorities, would 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 (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 court of jurisdiction to consider the merits of the appeal of the severed part of the case. 329 S.W.2d at 78-79 & n.1 ("[W]e do not think the appealability of a judgment should be made to turn upon whether the action is severable," and "[w]e 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." (emphasis added)).
Here, the parties and the probate court followed the supreme court's instruction in Crowson to use a severance order to eliminate ambiguity about whether the order was intended to be final and appealable as to the claims retained and decided by the probate court. See Crowson, 897 S.W.2d at 783 (explaining that interlocutory probate order, i.e., one not disposing of all parties and issues in that phase of probate proceeding, may be made final for appellate purposes by severance order "if it meets the severance criteria" and that "[l]itigants can and should seek a severance order either with the judgment disposing of one party or group of parties, or seek severance as quickly as practicable after the judgment"); cfi In re Guardianship of Jones, 629 S.W.3d 921, 925 (Tex. 2021) ("[U]nder both [the Lehmann and Crowson] standards an order that actually disposes of all issues and parties at the relevant stage of the proceedings is final."). The probate court expressed its intent to render a final and appealable judgment over the Executor's claims against Watkins in this phase of the proceedings when it stated that "all prior orders granting Watkins relief or denying the Executor's relief ... are now considered final and appealable" and that its order "therefore disposes of all issues retained by this Court as between the parties, and is a judgment as to the Executor's claims." The probate court then disposed of the other claims that it did not retain by severance and transfer. The order severs Watkins's claims against the Companies and transfers them back to the district court, and it also disposes of the only other pending claim between the parties-Watkins's claim for attorneys' fees incurred in defending against the Executor's dismissed Texas Theft Liability Act claim-by severance and transfer.
The parties agree that Watkins's attorneys' fee claim, which this Court concludes was improperly severed and transferred, should be remanded to the probate court. Under the circumstances present here, I would conclude that the probate court's severance of Watkins's attorneys' fees claim does not defeat our jurisdiction over the appeal from the probate court's order disposing of the Executor's claims against Watkins. In my opinion, the directive in Lehmann and Elizondo that clear and unequivocal finality language makes an order final and appealable is more applicable than Crowson's comment that a severance order that "meets the severance criteria" may make an interlocutory probate order final and appealable. In other words, I read Lehmann and Elizondo to mean that a probate court's order that contains clear and unequivocal finality language as to the claims decided by the court in a particular phase of the proceedings is final and appealable, even if analysis of the record demonstrates that the severance was improper. See Lehmann, 39 S.W.3d at 206 ("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.").
Although the supreme court in State v. Morello, 547 S.W.3d 881 (Tex. 2018), implies that an improper severance might render an otherwise final judgment interlocutory and thus not appealable, the court did not actually reach that conclusion because it concluded that the severance at issue in that case was proper. See id. at 888-89 (treating objection to severance as challenge to subject-matter jurisdiction that could not be waived but concluding that severance was proper because severed claims were not so interwoven with non-severed claims for severance to constitute abuse of discretion). Moreover, it does not appear from either Morello or this Court's opinion in Dalisa v. Bradford, 81 S.W.3d 876 (Tex. App.-Austin 2002, no pet.), that the severance orders in those cases contained the kind of clear and unequivocal finality language that would have required treating the orders as final and appealable but potentially erroneous. See Morello, 547 S.W.3d at 883-84; Dalisa, 81 S.W.3d at 879, 882 (explaining that immediately after trial court signed "Final Judgment" awarding Bradford declaratory relief under the Uniform Declaratory Judgments Act, it severed Bradford's UDJA claim from his claim for attorneys' fees under Act and from Dalisa's counterclaims but not indicating finality language was present in severance order). In Morello, the severance order to which Morello objected had severed out the State's claims against a co-defendant company a year before the State sought summary judgment against Morello, and the company had already appealed from the summary judgment rendered against it. 547 S.W.3d at 883-84. The court did not explain whether the original severance order contained finality language. In other words, it appears that in the absence of clear and unequivocal finality language, those courts appropriately reviewed the record to determine whether the severance order properly disposed of all claims and parties. See In re Elizondo, 544 S.W.3d at 827 ("The court of appeals was correct that Lehmann instructs reviewing courts to look at the record 'only if the order [i]s not clear and unequivocal.'" (quoting In re M & O Homebuilders, Inc., 516 S.W.3d 101, 106 (Tex. App-Houston [1st Dist] 2017, orig. proceeding)).
However, to the extent that an irreconcilable conflict may exist between Morello and the holdings in Elizondo and Lehmann, under the circumstances present here, because we should be "mindful of our policy to avoid constructions that defeat bona fide attempts to appeal," Crowson, 897 S.W.2d at 783, I would follow Elizondo and Lehmann and their progeny, and I would allow this appeal to proceed and would reach the merits. Because I would conclude that the trial court's order was final and appealable as to the Executor's claims against Watkins, even if the order erroneously severed Watkins's claim for attorneys' fees and transferred it to the district court, I would not dismiss the appeal for want of jurisdiction. Accordingly, I dissent.
The supreme court has instructed that we should try to "ensure that the right to appeal is not lost by an overly technical application of the law," and" [f]undamentally, this principle should guide in determining whether an order is final." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Moreover, "[s]implicity and certainty in appellate procedure are nowhere more important than in determining the time for perfecting appeal," which is controlled by our determination of when an order is final and appealable. Id.