In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00563-CV
DAPHNE KANAS, Appellant
V.
CARLOS GARCIA, DERRICK WALLS, AND SUPERIOR
HOME REAL ESTATE INSPECTIONS, LLC, Appellees
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. C2025399
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant Daphne Kanas attempts to appeal the trial court’s “Order on
Defendants Carlos Garcia, Derrick Walls[,] and Superior Home Real Estate
Inspections[, LLC’s] Motion to Sever and Motion for A[t]torneys[’] Fees” signed
August 27, 2025. Because we lack jurisdiction over this appeal, we will dismiss it.
Background
In a previous opinion, we described the basic facts underlying Kanas’s disputes
with various persons involved in her 2021 home purchase, including home inspector
Carlos Garcia; his employer, Superior Home Real Estate Inspections, LLC (Superior);
and Superior’s owner, Derrick Walls. See Kanas v. Smith-Ward, No. 02-24-00394-CV,
2025 WL 1478173, at *1–2 (Tex. App.—Fort Worth May 22, 2025, pet. denied). We
give a procedural timeline relevant to this appeal:
November 2021: Kanas closed on the home purchase “in November 2021.”
She later claimed that, “[u]pon moving into the property,” [she] discovered numerous
defects and hazards that were either not disclosed or were intentionally minimized
during the transaction[.]” She alleged that before she purchased the home, “Garcia
conducted a substandard property inspection” and provided her with an “inaccurate
inspection report.”
11/21/2022: Kanas filed her original petition, naming various defendants,
including “Carlos Garcia, Individually and as Inspector of Superior Real Estate
Inspection Services.” Kanas did not name Walls or Superior.
2
1/2/2025: Kanas, as a pro se litigant, 1 filed a First Amended Petition. Among
others, Kanas again named Garcia, and she also named Walls and Superior.
The First Amended Petition contained a factual-background section, sections
of “specific allegations,” and a causes-of-action section against all defendants.
Notably, it did not state the exact dates of Garcia’s inspection and his report or
Kanas’s discovery of the alleged undisclosed defects and hazards.
Kanas specifically pleaded that Garcia was negligent, colluded with her realtor,
and breached a fiduciary duty. Relatedly, Kanas specifically pleaded that Walls failed
to supervise Garcia and was negligent in establishing and enforcing standards, and she
attempted to tie such conduct to Superior. In addition, in a separate “specific
allegations” section, Kanas alleged under a sub-heading referring to “Defendants’
Negligence” that she “and her family endured significant hardship, directly resulting
from the Defendants’ negligence, fraudulent actions, and failure to disclose material
property defects.” [Emphasis added.]
In the causes-of-action section, she listed Garcia, Walls, and Superior (among
the other defendants) and cited a case she claimed allowed for the “recovery of costs
associated with repairs arising from fraudulent nondisclosure.” She also claimed
emotional and mental anguish “from the fraudulent real estate transaction.” She
claimed fraud as an exemplary-damages predicate. And as against all defendants—
1
A lawyer originally represented Kanas, but he withdrew in December 2024.
3
including Garcia, Walls, and Superior—she repeatedly pleaded for “[a] judicial
declaration affirming Defendants’ liability for fraudulent misrepresentation,
negligence, breach of contract, and violations under the Texas Deceptive Trade
Practices Act.” 2
2/25/2025: Garcia filed a Rule 91a Motion to Dismiss—a motion that is
designed to challenge causes of action on the pleadings. See Tex. R. Civ. P. 91a.2 (“A
motion . . . must identify each cause of action to which it is addressed . . . .”). Among
his grounds, Garcia argued—apparently without looking at the original petition—that
he was not joined until Kanas’s January 2, 2025 First Amended Petition, and he
further argued—without citing anything in the amended petition—that he was not
served until February 4, 2025.3 Despite this, he argued that limitations barred “all of
By our count, the words fraud or fraudulent appear 14 times in the First
2
Amended Petition’s causes-of-action section and prayer for relief.
3
While we do not pass on the propriety of the trial court’s granting of Garcia’s Rule 91a motion (because we lack jurisdiction over this appeal), we would have grave concerns about that ruling if the trial court ruled without considering that Garcia was named in the original petition or if it considered the service issue—which would have required it to look beyond the face of the pleadings. See Tex. R. Civ. P. 91a.6; see, e.g., City of Houston v. De La Cruz, No. 01-24-00797-CV, 2025 WL 3672311, at *6 (Tex. App.—Houston [1st Dist.] Dec. 18, 2025, no pet.) (stating that a Rule 91a motion was “not the proper procedural vehicle” to resolve factual disputes, including whether the plaintiff exercised diligence in serving process).
4
[Kanas’s] claims . . . pursuant to the facts on the face of the First Amended Petition.” 4
The motion did not challenge any other causes of action.
4/10/2025: The trial court granted Garcia’s Rule 91a motion and specifically
ordered dismissal of Kanas’s negligence, fiduciary-duty, and conspiracy claims. The
order also stated that Garcia was entitled to recover his attorneys’ fees and costs at a
later hearing, making it an interlocutory order.
4/28/2025: Walls and Superior filed a Rule 91a Motion to Dismiss. Walls and
Superior challenged only two causes of action: negligence and DTPA violations.
Among the motion’s grounds, they raised the two-year limitations defense to these
two causes of action.
5/16/2025: The trial court granted Walls and Superior’s Rule 91a motion and
broadly ordered that Kanas’s “claims against . . . Walls . . . [and] Superior . . . are
4
We do not opine on the propriety of Garcia’s arguments that (1) Kanas’s conspiracy claim “[could] not stand on its own” if the trial court dismissed Kanas’s negligence and fiduciary-duty claims, or (2) Kanas could not sue Garcia individually for his allegedly negligent home inspection. Compare Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996) (“A corporate officer or agent can be liable to others, including other company employees, for his or her own negligence. However, individual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer’s duty.”), with Guilbeau v. Anderson, 841 S.W.2d 517, 519 (Tex. App.—Houston [14th Dist.] 1992, no writ) (“Appellant’s argument misconceives the nature of this suit. Guilbeau is being sued individually for his own negligence and his own misrepresentations. It is the general rule in Texas that corporate agents are individually liable for fraudulent or tortious acts committed while in the service of their corporation.”).
5
hereby dismissed with prejudice.” The order also allowed Walls and Superior to
recover their attorneys’ fees and costs at a later hearing, making it interlocutory.5
8/5/2025: Garcia, Walls, and Superior filed a motion for their attorneys’ fees
and to sever their claims into a separate lawsuit to obtain a final judgment.
Early August 2025: Kanas filed a Second Amended Petition clarifying that she
was suing Garcia, Walls, and Superior for common-law fraud, statutory fraud under
Section 27.01 of the Texas Business and Commerce Code, negligence, negligent
misrepresentation, breach of contract, and DTPA violations.
8/7/2025: Garcia, Walls, and Superior filed a combined motion to dismiss,
complaining about the Second Amended Petition and arguing that res judicata barred
Kanas from pursuing the claims in her Second Amended Petition. 6 They also
requested that the trial court sanction Kanas for amending her pleadings.
5
At a June 9, 2025 hearing on a motion to reconsider, Kanas argued that she had pleaded fraud and desired to plead fraud claims. The trial court tried to discern what was pleaded in the First Amended Petition and asked defense counsel whether he thought fraud was pleaded. Counsel argued that “no fraud claims were alleged against” either Walls or Superior. But such an argument cannot be squared with the First Amended Petition. In four separate sentences, Kanas not only pleaded negligence and DTPA violations—which Walls and Superior moved to dismiss—but in the same sentences, she also pleaded claims for fraud and breach of contract.
6
It is unclear when Kanas filed the Second Amended Petition. During an August 27, 2025 hearing, defense counsel stated that he had filed the combined motion to dismiss on August 12, 2025, in response to the Second Amended Petition, but the combined motion is file-marked August 7, 2025. The only Second Amended Petition in the record before us bears an August 27, 2025 file-mark.
6
8/27/2025: On August 27, the court heard the August 5 and August 7 motions
that Garcia, Walls, and Superior had filed, along with a continuance motion that
Kanas had filed. At the hearing, the trial court repeatedly tried to clarify what motions
were at issue in light of the flurry of the parties’ filings. Eventually, the trial court
confirmed that it had previously granted Garcia’s Rule 91a motion and Walls and
Superior’s motion, and it then considered their attorneys’-fees evidence. Next, the trial
court took up the severance issue and considered the Second Amended Petition’s
effect. Kanas argued that she had pleaded fraud from the case’s beginning, and the
defendants argued res judicata. 7
At one point, in response to Kanas’s argument that she had previously pleaded
fraud and was simply trying to clarify it in her Second Amended Petition, defense
counsel argued: “If I may, if that’s the case and she confirms that she’s already pled
fraud in both of these original petitions, . . . all claims that were brought against my
clients have been dismissed. So she’s literally bringing claims that have already been
dismissed.” The trial judge then stated that he was deciding the issue of “do I allow
you to file a new petition with the claims that I’ve already dismissed.”
7
We also do not pass on the issue of res judicata—which the trial court did not address in a written order—but note that the doctrine operates only in the context of a final judgment from a prior suit. See, e.g., In re USAA Gen. Indem. Co., 629 S.W.3d 878, 884 n.12 (Tex. 2021); Starnes v. Holloway, 779 S.W.2d 86, 93 (Tex. App.—Dallas 1989, writ denied) (“An interlocutory judgment or order cannot operate as res judicata.”).
7
In response, Kanas pointed out that defense counsel had argued at a prior
hearing that she had not pleaded fraud, which she disputed. The trial court said that it
“understood” but was going to “grant the motion to sever” and declined to revisit its
prior rulings. Defense counsel withdrew his request for sanctions, and the trial court
asked for an order.
Defense counsel presented a proposed order that the trial court signed. The
order’s title specifically refers to the August 5 “Motion to Sever and Motion for
At[t]orney[’]s Fees.” But it then states, “On this day came on to be heard Defendants
Derrick Walls and Superior Home Real Estate Inspections’ Rule 91a Motion to
Dismiss” and “GRANTS” that motion—a motion that had already been granted in
the prior May 19 dismissal order. Notably, the August 27 order does not reference or
make any express ruling on the August 7 combined motion to dismiss raising the res
judicata defense.
It simply ordered that Kanas’s claims against Garcia, Walls, and Superior be
severed into a new and separate cause and directed the district clerk to assign a new
cause number and to include various documents in the severed cause. The trial court
also ordered Kanas to pay $6,346.03 in attorneys’ fees to Garcia and another
$6,346.03 in fees to Walls and Superior. The order concluded, “Upon transfer and
entry of this Order, this is a final judgment of this matter.” Although the order
referenced and directed that the two prior partial dismissal orders be included in the
8
record, the purported final order did not itself contain any decretal language disposing
of any of Kanas’s claims against Garcia, Walls, or Superior.
Discussion
Kanas has appealed the trial court’s Rule 91a rulings and fee awards. But in
looking at the record and the parties’ briefing—which discuss the effect, if any, of the
Second Amended Petition and when and whether Kanas pleaded fraud claims—we
became concerned that the August 27, 2025 order is not a final judgment or
appealable order.
“We are obligated to consider our jurisdiction at all times” even when the
parties have not raised the issue. Morath v. Lewis, 601 S.W.3d 785, 788–89 (Tex. 2020);
Townsend v. Vasquez, 569 S.W.3d 796, 803–04 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied). Generally, appeals may be taken only from final judgments or
interlocutory orders authorized by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195, 200 (Tex. 2001). Absent a conventional trial on the merits, a judgment is final if it
either (1) states with unmistakable clarity that it is a final judgment as to all claims and
all parties or (2) actually disposes of all claims and parties then before the court,
regardless of its language. Id. at 192–93.
When a trial court signs a final judgment, any interlocutory orders generally
merge into the final judgment and may be challenged by appealing that judgment.
Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385,
390 (Tex. 2020); WCJ Assets, LTD. v. US Trinity Bridgeport, LLC, No. 02-24-00232-CV,
9
2025 WL 3723942, at *4 (Tex. App.—Fort Worth Dec. 23, 2025, pet. filed). This is
true regardless of whether the final judgment incorporates, identifies, or refers to any
such interlocutory orders. Webb v. Jorns, 488 S.W.2d 407, 408–09 (Tex. 1972); WCJ
Assets, LTD., 2025 WL 3723942, at *4; Sustainable Tex. Oyster Res. Mgmt., L.L.C. v.
Hannah Reef, Inc., 623 S.W.3d 851, 863 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied); Dawson v. Lowrey, 441 S.W.3d 825, 828 n.5 (Tex. App.—Texarkana 2014, no
pet.).
To determine whether an order is a final judgment, we should first examine the
order’s language itself. In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (orig.
proceeding) (citing Lehmann, 39 S.W.3d at 195, 205–06); In re M & O Homebuilders, Inc.,
516 S.W.3d 101, 106 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding). If the
order does not clearly and unequivocally indicate finality, we then look at the record,
including any merged interlocutory orders, to determine finality. Elizondo, 544 S.W.3d
at 827–28; M & O Homebuilders, Inc., 516 S.W.3d at 106.
No “magic language” renders a judgment final, and “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.” Bella Palma, LLC v. Young,
601 S.W.3d 799, 801 (Tex. 2020). Examples of clear and unequivocal finality language
include: “This judgment finally disposes of all parties and all claims and is appealable,”
Lehmann, 39 S.W.3d at 206, and “This judgment is final, disposes of all claims and all
parties, and is appealable,” Elizondo, 544 S.W.3d at 825. Even if, for example, a
10
defendant moves for summary judgment on only one of several claims, “but the trial
court renders judgment that the plaintiff take nothing on all claims asserted, the
judgment is final—erroneous, but final.” Lehmann, 39 S.W.3d at 200.
But the Texas Supreme Court has
made clear that an order does not clearly and unequivocally express an
intent to enter a final judgment disposing of all claims and parties when
it . . . merely contains a “Mother Hubbard clause” stating that “all relief
not granted is denied,” Lehmann, 39 S.W.3d at 203-04,[] or states in its title
or on its face that it is “final,” id. at 205, or states that it is “appealable,”
id., or authorizes its enforcement or execution, [In re Burlington Coat
Factory Warehouse of McAllen, 167 S.W.3d 827, 830 (Tex. 2005) (orig.
proceeding)].
In re C.K.M., 709 S.W.3d 613, 618 (Tex. 2025). “[N]one of these statements is
sufficient to clearly and unequivocally express the trial court’s intent that the order
constitute[s] a final judgment.” Id. (citing Patel v. Nations Renovations, 661 S.W.3d 151,
155 (Tex. 2023)). In fact, the court has clarified that even an order titled a “Final
Order” that authorized its execution lacked “clear finality language.” Id. (quoting In re
Urban 8 LLC, 689 S.W.3d 926, 929 (Tex. 2024)). “Instead, finality is not in doubt
when a host of indicia are present (even if some common ones are not) and there is
no contradiction or equivocation.” Id. (citation modified).
After considering the August 27, 2025 order, the record, and the parties’
briefing, we called this jurisdictional issue to the parties’ attention and gave them ten
days to show grounds for continuing this appeal. See Tex. R. App. P. 44.3. Kanas
11
responded and argues that we lack jurisdiction; Garcia, Walls, and Superior also
responded but assert that we have jurisdiction. We do not.
Here, the trial court’s August 27, 2025 order and the underlying partial
dismissal orders lack the “host of indicia of finality.” See C.K.M., 709 S.W.3d at 619.
The August 27, 2025 order itself contains no decretal language disposing of any of
Kanas’s claims; it simply purports to be a “final judgment.” See WCJ Assets, LTD.,
2025 WL 3723942, at *5 (“At its core, a judgment grants or denies relief. . . . Decretal
language is the language employed to grant or deny that relief.”).
We must look at the two interlocutory dismissal orders that merged into the
August 27, 2025 order. Despite the fact that Walls and Superior moved for a Rule 91a
dismissal only on Kanas’s negligence and DTPA claims and did not challenge the
fraud or breach-of-contract causes of action, the trial court’s dismissal order broadly
ordered that Kanas’s “claims” against both Walls and Superior “are hereby dismissed
with prejudice.” By disposing of all Kanas’s “claims” against Walls and Superior—
even if this was erroneous (which it appears to be in light of the pleaded fraud and
breach-of-contract claims in the First Amended Petition that Kanas has since
incorporated into her Second Amended Petition)—such language indicates that the
trial court was disposing of all Kanas’s claims against Walls and Superior. See Lehmann,
39 S.W.3d at 205–06; see, e.g., Oncor Elec. Delivery Co. NTU LLC v. Young Cent. Appraisal
Dist., No. 02-22-00475-CV, 2024 WL 4455676, at *1 n.1 (Tex. App.—Fort Worth
Oct. 10, 2024, no pet.) (“When a trial court grants more relief than requested and,
12
therefore, makes an otherwise partial summary judgment final, that judgment,
although erroneous, is final and appealable.” (quoting G & H Towing Co. v. Magee,
347 S.W.3d 293, 298 (Tex. 2011))).
Yet we must also consider whether the trial court’s interlocutory dismissal
order granting Garcia’s Rule 91a motion disposed of all Kanas’s claims against him. It
did not. Unlike the Walls and Superior order, the Garcia dismissal order specifically
ordered “that [Kanas’s] claims against Defendant Carlos Garcia for [n]egligence,
[b]reach of [f]iduciary [d]uty, and [c]onspiracy are hereby dismissed.” Other claims,
however, remained pending against Garcia.
As we have pointed out, Kanas’s First Amended Petition—which was the
operative pleading when the trial court considered and granted Garcia’s Rule 91a
motion—additionally stated claims for breach of contract, DTPA violations, and
fraud (statutory and common law). Garcia did not challenge those causes of action in
his Rule 91a motion, and Kanas repeatedly argued that her fraud claim was a live
claim.
Considering Kanas’s argument at a June hearing, the trial court tried to
reconcile Kanas’s first pleading amendment and asked defense counsel, “But you
don’t believe that fraud is in the [first] amended petition in which these two
individuals or this entity and this individual [meaning Walls and Superior] were added.
Is that right?” He replied, “That is correct, Your Honor.”
13
Two months later, Kanas again raised the issue. Upon the trial court’s
questioning, defense counsel initially tacked in one direction, arguing that he was “not
sure . . . if fraud was included in any prior pleading.” He then changed course to argue
that if Kanas was “confirm[ing] that she’s already pled fraud in both of these original
petitions, . . . all claims that were brought against my clients have been dismissed” and
were barred by res judicata 8—essentially, he made a “heads I win, tails you lose”
argument and convinced the trial court.9
But the partial dismissal order concerning Garcia did not dispose of the fraud
claims or any breach-of-contract or DTPA claims against him—as Kanas had alleged
in her First Amended Petition, which she incorporated into her Second Amended
Petition. Likewise, the trial court’s August 27, 2025 order did not dispose of these
claims against Garcia. And even though Garcia raised res judicata in the August
8
If counsel meant to refer only to Walls and Superior in discussing the issue— as the record somewhat indicates—it is true that the court’s interlocutory order dismissed all “claims” against them, but that was not so as to Garcia, whom counsel also represented.
9
In the combined jurisdictional response, Garcia acknowledges that the references to fraud, breach of contract, and the DTPA “recite[d] damages categories and declaratory relief against all defendants collectively.” Yet he contends that those allegations “should not be construed as causes of action against each party,” and specifically him. This argument strains credulity given that Walls and Superior— through the same counsel—moved for dismissal on the DTPA claims even though such claims appear only in the general causes-of-action and prayer sections and not in the sections specific to Walls and Superior. Simply put, the claims Kanas pleaded against all defendants were pleaded against all defendants. See Goldstein v. Sabatino, 690 S.W.3d 287, 295 (Tex. 2024) (“Courts should review and evaluate pro se pleadings with liberality and patience.” (citation modified)).
14
7 combined motion to dismiss in response to Kanas’s Second Amended Petition, see
n.7, supra, he did not get a ruling on that motion. So the trial court never disposed of
Kanas’s fraud, breach-of-contract, and DTPA claims against Garcia.10
We thus conclude that the trial court’s August 27, 2025 order lacks the
necessary “host of indicia of finality.” C.K.M., 709 S.W.3d at 619 (citation modified).
Even with its language stating that it was a “final judgment,” that phrase standing
alone—in light of the Garcia order’s specific partial-dismissal language—did “not
clearly and unequivocally express the [trial] court’s intent to enter a final judgment
disposing of all claims and parties.” Id.; Urban 8 LLC, 689 S.W.3d at 929. The August
27, 2025 order is not final and therefore is unappealable.
Conclusion
Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P.
42.3(a), 43.2(f).
10
In their jurisdictional response, Garcia, Walls, and Superior point to various things the trial court said during the August 27 hearing to suggest that the trial court thought it had dismissed all Kanas’s claims against all parties. The trial court’s oral statements, however, are not expressed in its written orders, particularly the Garcia dismissal order or the August 27 order. Such oral statements are “not appropriate to cure the absence of decretal language, which is the very essence of intrinsic and distinct proof of adjudication.” WCJ Assets, LTD., 2025 WL 3723942, at *13.
15
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: August 13, 2026
16