Gretchen Blomstrom v. Altered Images Hair Studio, Inc. ( 2020 )

Opinion issued October 15, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00456-CV
———————————
GRETCHEN BLOMSTROM, Appellant
V.
ALTERED IMAGES HAIR STUDIO, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Case No. 86652-CV
CONCURRING MEMORANDUM OPINION
Altered Images Hair Studio sued its former employee, Gretchen Blomstrom,
for breach of a non-compete agreement. Blomstrom in turn asserted counterclaims
against Altered Images. The trial court granted summary judgment in favor of
Altered Images on all of its claims for affirmative relief and awarded liquidated
damages. By the same order, the trial court severed all of Altered Images’s claims
into a new cause and assigned it a new cause number. The order states that it
“disposes of all parties and matters in controversy, is a final order, and all writs of
execution may issue from same.” Blomstrom appealed from that order; her
counterclaims remaining pending in the trial court under the original cause number.
When a trial court severs a lawsuit, two or more independent suits result, and
each suit leads to its own final appealable judgment. Lousteau v. Noriega, No. 01-
15-00254-CV, 2016 WL 4537371, at *5 (Tex. App.—Houston [1st Dist.] Aug. 30,
2016, pet. denied) (mem. op.); In re Henry, 388 S.W.3d 719, 725–26 (Tex. App.–
Houston [1st Dist.] 2012, orig. proceeding [mand. denied]); Marin Real Estate
Partners, L.P. v. Vogt, 373 S.W.3d 57, 93 (Tex. App.—San Antonio 2011, no pet.);
Beckham Grp., P.C v. Snyder, 315 S.W.3d 244, 245 (Tex. App.—Dallas 2010, no
pet.). “[T]he granting of a severance makes the judgment in the severed portion of
the case final for purposes of appellate jurisdiction regardless of whether the
severance was proper.” Henry, 388 S.W.3d at 725 (quoting Rutherford v.
Whataburger, Inc., 601 S.W.2d 441, 443 (Tex. Civ. App.—Dallas 1980, writ ref’d
n.r.e.) (holding severance after trial court rendered partial summary judgment in
favor of defendants on two issues created final and appealable order); see also
Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (holding that judgment
is final for purposes of appeal if it disposes of all pending parties and claims). This
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obtains even when the live claims remaining in the trial court involve the identical
parties as the severed claims on appeal. See Farmer v. Ben E. Keith Co., 907 S.W.2d
495, 496–97 (Tex. 1995).
By dint of the severance, then, the summary judgment granted against
Blomstrom is final and appealable. This court should exercise its jurisdiction and
determine this appeal on the merits.
Would that it were so simple. Enter horizontal stare decisis.
Our panel opinion states, baldly and without qualification: “If a party appeals
from a partial summary judgment that disposes of some but not all claims between
the parties, we must dismiss the appeal for lack of jurisdiction, even if the trial court
severed the disposed claims from those that remain pending.” Slip op. at 3. The
opinion cites to three cases for authority for that holding. The first contains identical
language, without any qualification. See Van Duren v. Chife, 569 S.W.3d 176, 184
(Tex. App.—Houston [1st Dist.] 2018, no pet.). The second, upon which Van Duren
also relies, also contains the same language, without qualification, so that the sole
basis for a finding of no jurisdiction is the pendency of claims in the trial court
between the parties. See Davati v. McElya, 530 S.W.3d 265, 267 (Tex. App.—
Houston [1st Dist.] 2017, no pet.). The third, also relied on by Van Duren and Davati,
is a bit different; in it, not only are there claims between the parties still pending in
the trial court, but also the judgment on appeal lacks language indicating finality.
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See Duke v. Am. W. Steel, 526 S.W.3d 814, 817 (Tex. App.—Houston [1st Dist.]
2017, no pet.).
Davati relies on three other cases in addition to Duke. 530 S.W.3d at 267. In
two of them, after the judgment being appealed was severed, claims remained
pending between the parties in the trial court and the severed judgment being
appealed lacked finality language. See Alaniz v. O’Quinn Law Firm, No. 01-14-
00027-CV, 2015 WL 6755614, at *3 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015,
no pet.) (mem. op.); Cryogenic Vessel Alts., Inc. v. Lily & Yvette Constr., LLC, No.
01-13-00737-CV, 2015 WL 222135, at *3 (Tex. App.—Houston [1st Dist.] Jan. 15,
2015, no pet.) (mem. op.). In the third, the judgment on appeal did not resolve all of
the claims that were severed into the new action. See Gonzales v. Terrell, No. 01-
14-00711-CV, 2015 WL 1735370, at *1 (Tex. App.—Houston [1st Dist.] Apr. 14,
2015, no pet.) (mem. op.) (per curiam).
Properly phrased, the rule in Texas is as follows:
If a party appeals from a partial summary judgment that disposes of
some but not all claims between the parties, we must dismiss the appeal
for lack of jurisdiction, even if the trial court severed the disposed
claims from those that remain pending if the judgment being appealed
does not include finality language. If the judgment resolves all
claims in the severed action, and contains finality language, we may
properly exercise our appellate jurisdiction even if other claims
between the parties remain pending in the trial court.
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Davati, and then Van Duren, and then this panel’s opinion, * all truncate the
rule and omit the material qualifications which were previously recognized by this
Court.
We are constrained by the doctrine of horizontal stare decisis to follow that
erroneous precedent. “Absent a decision from a higher court or this court sitting en
banc that is on point and contrary to the prior panel decision or an intervening and
material change in the statutory law, this court is bound by the prior holding of
another panel of this court.” Medina v. Tate, 438 S.W.3d 583, 588 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) (quoting Taylor v. First Cmty. Credit Union, 316
S.W.3d 863, 869 (Tex. App.—Houston [14th Dist.] 2010, no pet.)); see also Morales
v. JP Morgan Chase Bank, N.A., No. 01–10–00553–CV, 2011 WL 2624047, at *4
(Tex. App.—Houston [1st Dist.] June 30, 2011, no pet.) (mem. op.) (same).
Accordingly, I concur in the judgment of this panel but hope the Court as a whole
will bring our jurisprudence of finality in line with that of the Supreme Court of
Texas.
Peter Kelly
Justice
Panel consists of Chief Justice Radack and Justices Kelly, and Goodman.
*
Another panel of this Court has recently avoided this error. See Segura-Romero v.
Castineira, No. 01-19-00147-CV, 2020 WL 2988371, at *2, *2 n.2 (Tex. App.—
Houston [1st Dist.] June 4, 2020, no pet.) (mem. op.).
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