Motion Granted; Appeal Dismissed and Majority and Dissenting Opinions

filed March 23, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00928-CV

QUAN NGUYEN; POLO CAPITAL, LLC; CALEDONIA WATER CO. 

L.C.; AND QN & DN INVESTMENTS, INC., Appellants

V.

THANH THI TRAN, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2022-01421-A

DISSENTING OPINION

Does language suggesting the mere possibility of further claims make a 

judgment that is otherwise final into an interlocutory judgment? In this appeal an 

interlocutory judgment has been severed in the trial court and is otherwise final 

under the first prong of Lehmann after that severance. See Lehmann v. Har-Con 

Corp., 39 S.W.3d 191, 200 (Tex. 2001) (“A judgment that finally disposes of all 
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remaining parties and claims, based on the record in the case, is final, regardless of 

its language.”). Without discussing Lehmann and its progeny, the majority merely 

states, “The severance order expressly indicates that further proceedings are to be 

had in the severed action,” does not analyze whether any parties and claims remain 

to be disposed of by “further proceedings,” deems the judgment interlocutory, and 

dismisses the appeal (presumably for want of subject-matter jurisdiction). Because 

this violates Lehmann, I dissent.

The parties signed a September 17, 2022 settlement agreement containing 

the following language:

Defendants agree to sign the “Agreed Partial Judgment” attached to 

this Agreement as Exhibit A. Plaintiff agrees not to abstract or record 

the Agreed Partial Judgment unless Defendants fail to strictly comply 

with any payment term(s) of this Agreement. In the event that 

Defendants fail to strictly comply with any payment term(s) of this 

Agreement, the Parties agree that Plaintiff may abstract and record the 

Agreed Partial Judgment and that the Agreed Partial Judgment will be

enforceable, final, and not subject to appeal.1

After plaintiff Thanh Thi Tran decided that defendants2 did not comply with the 

settlement agreement, plaintiff filed the following motion:

UNOPPOSED MOTION TO VACATE ABATEMENT ORDER,

REINSTATE CASE, AND ENTER AGREED NONAPPEALABLE JUDGMENT

Plaintiff and Quan Nguyen entered into a settlement agreement 

for the purpose of resolving their dispute. They filed, and this Court 

1 The settlement agreement appears in the clerk’s record as exhibit A to plaintiff’s 

October 14, 2022 motion to sever and exhibit B to defendants’ supplemental response to 

plaintiff’s motion to sever. There is no reporter’s record in this appeal. I express no opinion 

whether the settlement agreement was admitted into evidence in the trial court and is properly

before this court for review.

2 The defendants are Quan Nguyen; Polo Capital, LLC; Caledonia Water Co. L.C.; and 

QN & DN Investments, Inc.
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granted, a joint motion to abate pending the earlier of (a) Plaintiff 

timely receiving all payments under the agreement or (b) any failure 

by Quan Nguyen to strictly comply with the payment terms of the 

agreement. Unfortunately, Quan Nguyen failed to comply with his 

obligation to pay the first installment payment. Thus, Plaintiff 

requests—and Quan Nguyen does not oppose—vacating the 

abatement order; reinstating this case; and entering the agreed,

non-appealable judgment attached to this motion as Exhibit A.

On October 14, 2022, the trial court signed that judgment:

AGREED PARTIAL JUDGMENT

Plaintiff Thanh Thi Tran (“Plaintiff”) and Defendants Quan 

Nguyen, Polo Capital, LLC (“Polo Capital”), Caledonia Water Co., 

L.C. (“Caledonia”), and QN & DN Investments, Inc. (“QN & DN”) 

(collectively, “Defendants”) have agreed to entry of this Judgment.

Having considered their agreement, the pleadings, and the records on 

file in this case, this Court RENDERS judgment for Plaintiff and 

against Defendants.

It is therefore ORDERED, ADJUDGED, and DECREED that 

Plaintiff shall recover from Quan Nguyen, Polo Capital, Caledonia, 

and QN & DN, jointly and severally, the amount of Twelve Million 

Dollars ($12,000,000).

It is further ORDERED, ADJUDGED, and DECREED that 

Plaintiff shall recover court costs taxed against Defendants.

It is further ORDERED, ADJUDGED, and DECREED Plaintiff 

shall recover from Defendants post-judgment interest on all amounts 

awarded in this Judgment at the rate of 5.5% per annum compounded 

annually from the date of this Judgment until fully paid.

It is further ORDERED, ADJUDGED, and DECREED that 

each Defendant is jointly and severally liable for all amounts awarded 

in this Judgment and that Plaintiff is entitled to recover from each 

Defendant all amounts recoverable from any other Defendant in this 

Judgment in accordance with Chapter 33 of the Texas Civil Practice 

& Remedies Code.

The trial court signed a severance order on November 21, 2022:
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ORDER GRANTING PLAINTIFF’S MOTION TO SEVER

On this day, the Court considered the “Motion to Sever”

(“Motion”) filed by Plaintiff Thanh Thi Tran (“Plaintiff”). After 

considering the Motion, the Response and Supplemental Response 

filed by Defendants Quan Nguyen; Polo Capital, LLC; Caledonia 

Water Co., L.C.; and QN & DN Investments, Inc. (collectively, 

“Defendants”), Plaintiffs Reply, the record, and arguments of counsel, 

the Court finds the Motion should be, and is hereby, GRANTED.

It is therefore ORDERED, ADJUDGED, and DECREED that

Plaintiffs claim against Defendants arising from the breach of the 

settlement agreement is hereby SEVERED from the remaining claims 

in this action and shall proceed under the separate docket number of 

2022-01421-A.

It is further ORDERED, ADJUDGED, and DECREED that 

copies of the following documents shall be made by the Clerk of the 

Court and placed in the Court’s file in Cause No. 2022-01421-A:

Image No. Title Date

104584966

MONETARY AMAGES AWARDED

ORDER FOR AGREED PARTIAL 

JUDGMENT SIGNED 10/14/22

104555307

Proposed Order Granting Plaintiffs 

Unopposed Motion to Vacate 

Abatement Order, Reinstate Case, and 

Enter Agreed No-Appealable 

Judgment

10/13/22

104538396 Proposed Agreed Judgment 10/12/22

104520307

Unopposed Motion to Vacate 

Abatement Order, Reinstate Case, and 

Enter Agreed Non-Appealable

Judgment

10/11/22

104520308 Proposed Agreed Partial Judgment 10/11/22

104520446 Letter to Judge Schaffer 10/11/22
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It is further ORDERED, ADJUDGED, and DECREED that 

the costs of severance are to be borne by Defendants.

Signed: [signature]

11/21/2022

The Honorable Judge Robert Schaffer, presiding

It is further Ordered that any recovery obtained by the Plaintiff 

under the final judgment of 2022-01421-A shall serve as a 

credit towards any recovery, if any, obtained by Plaintiff under a 

final judgment awarding Plaintiff damages in 2022-01421.

Nothing in the severance order mandated further proceedings on claims. The 

severance order merely stated, “and shall proceed under the separate docket 

number of 2022-01421-A.” That wording does not make an otherwise final 

judgment interlocutory.

This court errs in holding that the appeal is interlocutory. It is not, and this 

court has subject-matter jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 52.012 (providing for appeal or writ of error to court of appeals).

This court further errs in granting the appellee’s motion to dismiss without 

addressing the grounds in the motion. The first ground is that appellants “cannot 

challenge the severance order without appealing the final judgment.” It is true that 

appellants’ notice of appeal states, “Defendants Quan Nguyen, Polo Capital, LLC, 

Caledonia Water Co. L.C., and QN & DN Investments, Inc (collectively 

“Nguyen”) file this Notice of Appeal to either the First or Fourteenth Court of 

Appeals and state that they desire to appeal from the Order of Severance (dated 

November 21, 2022) attached as Exhibit ‘A.’” The November 21, 2022 order of 

severance, however, is not merely an order of severance, it is also the final 

judgment. If the court is concerned that appellants only wish to appeal the actual 

severance and not the remainder of the final judgment, then the court should 
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provide due process and notify appellants and provide them an opportunity to file 

an amended notice of appeal correcting that defect. See Tex. R. App. P. 21.5(g) 

(amending notice).

Appellee’s second ground for dismissal is that appellants have waived the 

right to appeal the final judgment. Appellee cites as authority Emerson v. Emerson, 

a case that involved a Texas Rule of Civil Procedure 11 waiver of the right to 

appeal some but not all the issues in that appeal. Emerson v. Emerson, 559 S.W.3d 

727 (Tex. App.—Houston [14th Dist.] 2018, no pet.). There is no Rule 11 

agreement in this appeal, the settlement agreement appears to apply to everything 

in the final judgment,

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and appellants have not yet filed a brief stating their issues 

or points or error. Emerson does not apply to this appeal, and appellee make no 

other arguments to support dismissal under the facts of this appeal.

This court errs in granting the motion to dismiss without explanation. The 

court could, but does not, give notice of an involuntary dismissal for want of 

prosecution, explaining the court’s reasoning for the involuntary dismissal. See

Tex. R. App. P. 42.3 (involuntary dismissal in civil cases).

I dissent to this court’s judgment dismissing the appeal.

/s/ Charles A. Spain

Justice

Panel consists of Chief Justice Christopher and Justices Hassan and Spain (Spain, 

J., dissenting).

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See discussion of whether the settlement agreement is before this court, supra note 1.