Christopher Durham v. Barbara Accardi and Jules Accardi

Citation: Not availableDocket: 14-18-00060-CV

Court: Court of Appeals of Texas; October 10, 2019; Texas; State Appellate Court

Original Court Document: View Document

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Affirmed opinions were filed on October 10, 2019, in the Fourteenth Court of Appeals case No. 14-18-00060-CV, involving appellant Christopher Durham and appellees Barbara and Jules Accardi, stemming from the 261st District Court in Travis County, Texas. A dissenting opinion raises a critical legal question: whether an appellate court can create a final, appealable judgment by extending summary judgment relief to claims not explicitly addressed in the defendant's motion. The dissent asserts that the answer is "No," referencing the case City of Houston v. Clear Creek Basin Authority. 

Durham's live pleadings include a third amended petition alleging negligence, gross negligence, and negligence per se, with requests for punitive damages and piercing the corporate veil of Austin Budget Signs. La Fuente moved for summary judgment on all claims against it, leading to a district court ruling on September 5, 2014, that dismissed all claims against La Fuente with prejudice. Following this, La Fuente requested a severance, resulting in a November 5, 2014, judgment that formally severed and resolved all claims against La Fuente, declaring that Durham would take nothing from them. This judgment is characterized as final and immediately appealable, disposing of all issues related to La Fuente while leaving other claims pending against the remaining defendants.

The City of Austin and Austin Energy successfully moved for summary judgment on August 21, 2016, resulting in the dismissal of all claims against them by Plaintiff Christopher Durham with prejudice. All other relief sought by Durham was denied. Subsequently, Barbara Accardi and Jules Accardi also moved for summary judgment, which was granted on October 20, 2016, leading to the dismissal of Durham’s claims against them as well. On October 28, 2016, Durham filed a motion to reconsider this ruling. Rather than simply denying the motion, the district court issued an order on June 7, 2017, that granted the Accardis’ summary judgment motion but did not explicitly state that Durham take nothing from them, necessitating a review of their prior motion.

The Accardis’ August 31, 2016 motion claimed to negate Durham's alter-ego theory, other corporate veil theories of liability, and negligence claims, asserting lack of evidence that they owed a duty or caused any injuries. The motion did not specifically address Durham's negligence-per-se claims. On July 17, 2017, Durham moved to sever his alter-ego claims against the Accardis, arguing the facts differed from his negligence claims. The district court found merit in this motion and granted it, allowing the severance of Durham's alter-ego claim against the Accardis.

Plaintiff’s Motion to Sever has been granted, allowing the claims against Barbara and Jules Accardi to be separated, thereby enabling the summary judgment in their favor to become final. Austin Budget Signs, Inc. remains the sole defendant. Despite the December 14, 2017 order not adhering to the standards set in Lehmann v. Har-Con Corp., it is viewed by the parties and the court as final and appealable. However, the language used in the order does not adequately establish a final judgment, as the issue of subject-matter jurisdiction cannot be waived. The district court had previously issued a clear summary judgment disposing of all claims against La Fuente, and the claims against the Accardis were similarly addressed but lacked the necessary clarity in the new summary judgment order regarding negligence-per-se claims. The dissenting opinion emphasizes that while the intention may have been to efficiently resolve the matter, the failure to follow proper legal protocols constitutes a fundamental error. The dissent concludes that there is no final judgment, and therefore, the court lacks subject-matter jurisdiction. Justice Charles A. Spain dissents, joined by Justices Wise and Zimmerer.