Gretchen Blomstrom v. Altered Images Hair Studio, Inc.

• Court: Court of Appeals of Texas
• Decided: October 15, 2020
• Docket: 01-19-00456-CV
• Status: Published

Opinion

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

2 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.

3 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.

4 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.). 5