Jerry Alfred Futch Jr. v. Reliant Sources, Inc., (Nka RRI Energy, Inc.), Reliant Energy Services, Inc. (Nka RRI Energy Services, Inc) Baker Botts, L.L.P., Sidley Austin, L.L.P., and Reliant Energy, Inc.

Dismissed and Opinion filed October 27, 2011.

In The

Fourteenth Court of Appeals
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NO. 14-10-00399-CV
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JERRY ALFRED FUTCH, JR., Appellant

V.

RELIANT SOURCES, INC., (NKA RRI ENERGY, INC.), RELIANT ENERGY
SERVICES, INC. (NKA RRI ENERGY SERVICES, INC.) BAKER BOTTS, L.L.P.,
SIDLEY AURTIN, L.L.P., AND RELIANY ENERGY, INC., Appellee

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2008-57943

OPINION

Appellant, Jerry Alfred Futch, Jr., (“Futch”), appeals the trial court’s grant of
summary judgment in favor of appellee Baker Botts, L.L.P. (“Baker Botts”). Because this
Court is without jurisdiction, we dismiss the appeal. See Tex. R. App. P. 42.3(a).

FACTUAL AND PROCEDURAL BACKGROUND

In October 2008, Futch filed a lawsuit against Reliant Resources, Inc., Reliant
Energy Services, Inc., Baker Botts, L.L.P., and Sidley Austin, L.L.P.1 Only Baker Botts is
a party to this appeal. Futch’s original petition asserted two claims against Baker
Botts—breach of fiduciary duty and fraud by nondisclosure. On August 14, 2009, Baker
Botts filed a Motion for Summary Judgment (“Motion”) “on all claims brought” by Futch.
On October 21, 2009, Futch filed his first amended petition and added a breach of contract
claim against Baker Botts. Additionally, the amended petition dropped the fraud by
nondisclosure claim. That same day, Futch also filed his Response to the Motion
(“Response”). Futch specifically referred to the breach of contract claim in the Response,
arguing that the precedent cited in the Motion did not bar his claims for breach of contract
or breach of fiduciary duty. On October 22, 2009, Baker Botts filed its Reply in Support of
Summary Judgment (“Reply”). The Reply addressed Futch’s breach of contract claim
and asked that the trial court “render a judgment that Plaintiff Futch take nothing in this suit
….”
On February 8, 2010, the trial court filed an order entitled “ORDER ON
DEFENDANTS BAKER BOTTS LLP’S AND SIDLEY AUSTIN LLP’S MOTION FOR
SUMMARY JUDGMENT” (“Order”). In the dispositive portions, the Order stated:
“Defendants Baker Botts LLP and Sidley Austin LLP (“Defendants”) filed their Motion
for Summary Judgment (“Motion”). Plaintiff Alfred A. Futch (“Plaintiff”) filed its
Response. After considering Defendants’ Motion and Plaintiff’s Response, the Court
hereby: GRANTS Defendants’ Motion in its entirety.”

DISCUSSION

While neither party argues the Order issued was interlocutory, this issue must be
addressed sua sponte because it raises a question of this Court’s jurisdiction. M.O. Dental
Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).

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Futch non-suited all of the defendants except Baker Botts.
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 Generally, an appeal may only be taken from a final judgment. Lehmann v.
Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). “[W]hen there has not been a
conventional trial on the merits, an order or judgment is not final for purposes of appeal
unless it actually disposes of every pending claim and party or unless it clearly and
unequivocally states that it finally disposes of all claims and all parties.” Id. at 205
(emphasis added). A determination of whether a judicial decree is a final judgment must
be done by looking at the language of the decree and the record in the case. Id. at 195.
“A judgment that finally disposes of all remaining parties and claims, based on the record
in the case, is final, regardless of its language.” Id. at 200. If the language of an order
expressly disposes of all claims and all parties, then it is final—even if it should have been
interlocutory. Id. However, the intent to finally dispose of the case must be
unequivocally expressed in the words of the order itself. Id. If that intent is clear from
the order, then the order is final and appealable. Id. This is true even though the record
does not provide an adequate basis for rendition of judgment. Id. In explaining this
concept, the Texas Supreme Court gave an illustrative example:

[A]n order granting a motion for summary judgment that addressed all of the
plaintiff’s claims when it was filed but did not address claims timely added
by amendment after the motion was filed may state unequivocally that final
judgment is rendered that the plaintiff take nothing by his suit. Granting
more relief than the movant is entitled to makes the order reversible, but not
interlocutory.

Id. at 204.
In Continental Airlines, Inc. v. Kiefer, the Texas Supreme Court dealt with a
judgment and facts very similar to the one presented in this appeal. See Continental
Airlines, Inc. v. Kiefer, 920 S.W.2d 274 (Tex. 1996). In Kiefer, the plaintiffs sued
Continental for negligence. Id. at 276. Continental moved for summary judgment on
“all claims brought by” the plaintiffs based on preemption. Id. Before the trial court
addressed Continental’s motion for summary judgment, the plaintiffs amended their
pleadings to add two new causes of action: an implied cause of action under the ADA, and
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a federal common-law negligence action. Id. The trial court granted Continental’s
motion for summary judgment “after examining the pleadings.” Id. The judgment was
entitled: “FINAL SUMMARY JUDGMENT” and stated that “the cause of action is
dismissed as being preempted.” Id. at 277 (emphasis added).
Based on the above facts, the Texas Supreme Court held that the judgment issued by
the trial court was final. Id. In making its determination, the Court looked to the
intention of the trial court, the record as a whole, and the conduct of the parties. Id. The
Court found that the language used in Continental’s motion, “all claims brought by,” was
sufficient to dispose of all of the claims filed by the plaintiffs, even those claims first
asserted after Continental’s motion was filed. Id. at 276. The Court also found the title
of the judgment, “FINAL SUMMARY JUDGMENT,” supported the conclusion that the
judgment was final. Id. at 277. The Court stated:

In the circumstances described here, we think the district court intended to
render a final, appealable judgment. The court’s rejection of the [plaintiffs’]
arguments that the federal claims should be treated differently favors this
conclusion. Neither the parties nor the court of appeals have suggested that
the judgment was not final.

Id.
In its discussion of the facts, the Court noted that the grounds in Continental’s
motion did not entitle it to summary judgment on the later filed claims. Id. at 276.
Additionally, the judgment stated “the cause of action is dismissed,” singular instead of
plural. Id. at 277. Both of these facts raised the issue of whether the trial court ever
considered the plaintiffs’ additional claims when it rendered the judgment. Id. at 276
(“[i]f the [trial] court held the [plaintiffs’] federal claims to be preempted, it plainly erred;
but if the court simply did not consider the federal claims, then the summary judgment was
not final and appealable.”). Ultimately the Court found that the trial court did not
overlook the additional claims in rendering the judgment because the plaintiffs specifically
pointed them out in their response to the motion for summary judgment and in their motion
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for new trial. Id. at 277.
While Kiefer is similar to the appeal before this Court, it is distinguishable. First,
the Order issued by the trial court does not indicate finality anywhere on its face. Instead
of being titled “FINAL SUMMARY JUDGMENT,” or using some other language to
indicate finality, the Order is entitled “ORDER ON DEFENDANTS … MOTION FOR
SUMMARY JUDGMENT.” Additionally, instead of dismissing or disposing of all
claims as the judgment did in Kiefer, the Order granted the “Motion in its entirety.” While
a particular title is not dispositive nor is particular language required, it is an indication of
the intent of the trial court in issuing the Order. See Lehmann, 39 S.W.3d at 206; Kiefer,
920 S.W.2d at 277. We cannot say the title and language used in the Order indicated
unequivocally the intention that the case be finally disposed. See Lehmann, 39 S.W.3d at
195. Nor can we say the language used in the Order expressly disposed of all the claims or
parties. See id. Furthermore, at the time the Order was entered it did not dispose of all
claims and parties. Futch later non-suited his remaining claims against all of the
defendants, except for those against Baker Botts.
Second, in the Order the trial court indicated it only looked to the Motion and
Response. In Kiefer, the judgment indicated it was issued after examining the pleadings,
which could have included the pleading which added the new claim. Here, the Motion did
not address the breach of contract claim, nor did it specifically address any grounds for
dismissing that claim. The breach of contract claim was not addressed by Baker Botts
until the Reply was filed. However, there is no indication in the Order that the Reply was
ever considered by the court.2 Since there is no indication that the trial court took the
breach of contract claim into consideration in its Order, we cannot say that claim was ever
actually addressed or disposed of. See id. at 205.

2
Furthermore, the Court notes that if the trial court had disposed of Futch’s breach of contract
claim based solely on the Motion and the Response, such a disposition would make the Order final but
reversible on the basis that it granted more relief than the movant was entitled to. See Lehmann, 39 S.W.3d
at 204 (“Granting more relief than the movant is entitled to makes the order reversible, but not
interlocutory.”).
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 Without any indication of the finality of the Order, or recognition that the trial court
considered the breach of contract claim, this Court is constrained to find that the Order
issued is not a final judgment because it did not dispose of all claims. See id. at 200.

CONCLUSION
Because this Court is without jurisdiction, we dismiss the appeal in its entirety.

/s/ John S. Anderson
Justice

Panel consists of Justices Anderson, Seymore, McCally.

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