Motion Granted; Appeal Dismissed and Majority and Dissenting Opinion s

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
. , App ellant s V. THANH THI TRA N , Appellee
On Appeal from the 152nd District Court

Harris County, Texas Trial Court Cause No. 2022
- 01421
- A


### DISSENTIN G OPINION
Does langu age suggesting the mere possibility of further claims make a judgment that is othe r wis e fin a l into an interlocutory judgment ? In this appeal an interlocutory judgment has been severed in the trial court and is otherwise final under the fir st pron g of Le h man n after th at severance. See Lehmann v. Har

- Con Corp. , 39 S.W.3d 191, 2 00 (Tex. 20 01) ( “ A ju dgment tha t finally disp oses of all2

remaining parties and claims, based on the record in the case, is final, regardless of its lan guage. ” )

. W ithout discussing L ehmann and its prog e ny , t he majority merely
states , “ The severance order expressly ind icat es tha t further proceedings ar e to be had in the severed action , ” does not analy z e wh et her any parties and claims remain to be disposed of by “ further pro c e edings , ” d eems th e judgment interlocutory , and d i s misse s the appe al (presumably for want of subj ect

- matter jurisdict i on )

. Because
t his violates Lehmann , I dissent. The parties signed a September 17, 2022 settlement agreement containin g the following language: Defendants agree to sign the “Agreed Partial Judgment” attached to this Agreement as Exhibit A. Plaint iff agrees not to a bstra c t 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 , th e Part ies agree that Plai ntiff 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 Tra n decided that defendants 2 did not comply with the settle ment agree ment , plaint i f f filed the f

ollowing motion:
UNOPPOSED MOTION TO VACATE ABATEMENT ORDER , REINSTATE CASE , AND ENTER AGREED NON
APPEALABLE JUDGMENT Plaintiff and Quan Nguyen entered into a settlement agreement for the purpose of resolving thei r disp ute

. They filed , and t h is Court

1 The set tlement agree ment ap pea rs in the clerk ’ s record as exhibit A t o plaintiff ’ s October 14, 2022 motion to sever and exhibit B to defendants ’ supplemental response to plaintiff ’ s m otion to sever

. There is no report er ’ s record in t his app eal. I e xpress no opinio n w hether the set tl ement agreement w as a dm itted into evidence in the trial court and is proper ly before this court for review.

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

. ; an d QN & DN Invest me nts, Inc

.3

granted , a joint motion to abate pending the earlier of ( a ) Plaintiff timely rece iving all payments under the agreement or ( b ) any failure by Quan Nguyen to strictly comply with the payment terms of the agreement . Unfo rtuna tely , Quan Nguyen faile d 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 j udgment atta ched to thi s motion as E xhibit A

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

AGREED PARTIAL JUDGMENT
Plaintiff Thanh Thi Tran ( “ Plaintiff ” ) and Defendants Quan Nguyen , Polo Ca p ital , LLC ( “Polo Capital ” ) , Caledonia Water Co

. , L

. C

. ( “ Ca ledon ia ” ) , and Q N & D N Invest ments , 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 Plaintif f and a gains t Defendant s
. I t i s ther efore ORDERED , ADJUDGED , and DECREED that Plaintiff shall recover fr om Quan Nguyen , Polo Capital , Caledonia , and QN & DN , jointly and severally , the amount of Twelve Million Dollars ( $ 12 , 000 , 000 )

. It is further ORDERED , ADJUDGE D , an d DECREED t hat P la intiff 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 an num c ompounded a nnua l ly from the date of this Judgment until fully paid

. It is further O RDERED , ADJUDGED , and DECREED that each Defendant is jointly and severally liable for all amounts awarded in this Judgment and that Plaintiff is entitled to reco ver fro m eac h Defendant all am ounts 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 :4

ORDER GRANTING PLAINTIFF ’ S MOTION TO SE VER

On th is d a y , the Co urt 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 ; C aledoni a Wate r Co

. , L

. C .; a n d 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 Plaint iffs c laim again st D e fe ndants 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 DE CREED t hat co pies of th e fo l lo wing do cuments shall be made by the Clerk of the Court and placed in the Court ’s file in Cause No . 2022

- 01421

- A : Image N o . Title Date

104584966 MONETARY AMAGES AWARDED

ORDER FOR AGREED PARTIAL JUDGMENT SIGNED 10 / 14 / 22

104555307 P roposed Order G ra nting P laintiffs

Unopposed Motion to Vacate Abatement Order , Reinstate Case , and Enter Agreed No

- Ap pealable Judgment 10 / 13 / 22

104538396 Proposed Agreed Judgment 10 /12/22

104520307 Unopposed Motion to Vacate

Abatement Or der , Reinstat e Case , and En t er Agreed Non

- A ppealable Judgment 10 /11/22

104520308 Proposed Agreed Partial Judgment 10 /11/22
104520446 Letter to Judge Schaffer 10 /11/225 It is further ORDERED , ADJUDGED , and DECREED that the costs of severance are to be borne by Def e ndants

. Si g n e d : [ si gnature ] 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 recov ery , if any , obtained by P l ain tiff un der a final judgment awarding Plaintiff damages in 2022

- 01421.

N othing in th e severance order mandated f u rther proceedings on claims

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

num ber of 2022

- 01 421

- A

. ” That w ord ing doe s n o t make an otherwise final judgment interlocu tory

. T h is court err s in ho lding that the appeal is interlocutory. It is not, and this court has subject

- matter jurisdiction. See Tex. Civ. P rac. & Rem. Code Ann. § 52.01 2 (providing f

or appeal or w rit of err o r t o court of appeals)

. T his court further errs in granting the appell ee ’ s motion to dismiss without addressing the grounds in the motion . The first ground is that appellants “ cannot challenge the severance order with out appealin g the final jud g ment

. ” It is tr u e that appellant s ’ 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 Firs t or Fourtee nth Court of Ap p eals and st ate t ha t 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 judgme nt. I f th e court is conce rned that ap pellant s onl y wi s h to appeal the actual

severance and not the remainder of the final judgment , then the court should6

pro vide due process and notify appellants and provide the m an opportunity to file an amended notice o f ap peal correcting t hat defect

. See Tex. R. App. P. 21.5(g) (amending no t ice). Appellee ’ s second ground for dismiss al is that appellants have waived th e right to appeal the final judgment. Appellee cite s as authority Emerso n v. Emerson , a case that involved a Texas Rule of C ivil Pr ocedure 11 waive r o f the right to app eal some but not all the issues in that appeal. Emerso n v. Emerson , 559 S.W.3d 727 (Tex. App.

— Hou ston [14th Dist.] 2018, no pet.). There is no Rule 11 agreement in this appeal , the settleme nt agre ement appears to apply to everything i n t he final judgment , 3 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 argument s to support dis missal under the facts of this appea l.
T his court errs in gr a nt ing the motion to dismiss without explanation. The court could, but does not, give notic e of an involuntary dismissal for want of prosecution, explaining the court ’s reasoning for the involunta ry dismissal. See Tex. R. App. P. 42 .3 (inv o luntary d ismissa l i n civil cases).
I dissent to this court ’ s judgment dismissing the appeal.

/s/ Charles A. Spain Justic e

P anel consists of Chief Justice Christop her and Justices Hass a n and Spain (S pa in, J., dissenting)

.

3 See d iscussi on of whether the settlement agreement is before thi s court , supra note 1.