Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2014-00998
consists of Justices Keyes, Higley, and Landau.
Carter Higley Justice.
Mejia-Rosa appeals the trial court's rendition of summary
judgment in favor of appellee, John Moore Services, Inc.
("JMS"), on her respondeat superior and negligent
hiring, training, supervision, monitoring, retention, and
entrustment, and gross negligence claims for injuries she
sustained after being struck by a van driven by a JMS
employee. In two issues, Mejia-Rosa argues that the trial
court erred in granting JMS's summary-judgment motion on
no-evidence and traditional grounds because she presented
evidence raising a genuine issue of material fact for each of
argues that we lack jurisdiction over this appeal. We
disagree and affirm the trial court's summary-judgment
was walking her dogs in the parking area of her apartment
complex when she was struck by a JMS van driven by Kim Allen
Madden.According to her live petition, Mejia-Rosa
was thrown through the air and sustained injuries including a
massive laceration on the back of her head.
sued JMS as well as two other defendants who are not parties
to this appeal, namely, IT-Fountains of Tomball, Ltd., the
owner of the apartment complex, and Henry S. Miller Realty
Management, LLC, the manager of the apartment complex.
filed a hybrid motion for summary judgment on all of
Mejia-Rosa's claims against it. In support of its
traditional motion, JMS attached Madden's affidavit and
deposition testimony. In his affidavit, Madden stated that
the accident occurred as he entered the parking lot of his
apartment complex at the end of his work day. He also stated
that he was not in the course and scope of his employment, on
any special mission, or on call for JMS.
deposition testimony, Madden stated that he began working as
an electrician for JMS on February 10, 2000. His "usual
work hours" are 7:00 a.m. to 6:00 p.m. Before he was
hired, he had to pass a 400-question test, covering driver
competence as well as other aspects of his employment. Once
hired, Madden was permitted to drive a JMS van "right
away." His training consisted of a ride-along over the
first three days of his employment, as well as weekly
"safety training" that "sometimes"
covered driver safety.
also testified that during his first year of employment with
JMS, he received two traffic citations. The first was for his
involvement in a "four-car pileup" accident while
driving his JMS van. He explained that "the rear-end
truck made everybody else bump into each other because
somebody in the front pulled out in front." He also
stated that he "shouldn't have been
responsible," but "the cop didn't see the
accident, so he gave everybody a ticket." His second
citation was a red-light camera ticket. Madden also stated
that JMS had never designated him a "high risk
driver," placed him on probation for his driving, or
suspended his driving privileges.
accident happened at 6:45 p.m. on December 19, 2013, when
Madden was driving home from work. He was not on call for JMS
(nor had he ever been on call for JMS) and was not his cell
phone. He was driving five miles per hour in the parking lot
of the apartment complex where both he and Mejia-Rosa were
residents, when Mejia-Rosa "darted out in front of"
him from between parked cars. Before he could stop, his van
struck her, knocking her to the ground.
addition to Madden's affidavit and deposition testimony,
JMS presented evidence showing that before hiring and
entrusting Madden with the company van, it had obtained his
Driver Record Service Report indicating that he possessed a
valid unrestricted driver's license and that his
three-year driving record was "clear."
response, Mejia-Rosa attached records for Madden's JMS
cell phone. The records indicate that on the evening of the
accident, Madden was on his cell phone for 9 minutes at 5:47
p.m., 5 minutes at 6:11 p.m., 3 minutes at 7:18 p.m., and 4
minutes at 7:31 p.m. Mejia-Rosa also attached JMS's cell
phone policy, which states that JMS cell phones do not allow
access to outside numbers and are only to be used for
also attached JMS's On-Call Policy, Employee Handbook,
and Fleet Safety Program Manual. The On-Call Policy and
Employee Handbook state that JMS employees "in certain
departments," including electricians, may be required to
take call "during certain times of the year" and
"must be readily reachable by telephone." JMS's
Fleet Safety Program Manual states that when a JMS driver
receives two or more moving violations within one year, he
will be designated a "High Risk Driver," and as
such, will be given additional driver safety training and
either be placed on probation or have his driving privileges
suspended. The Fleet Safety Program Manual also states that
JMS will provide periodic driver safety training and obtain
annual driving records for its drivers.
15, 2015, the trial court granted JMS's motion, rendering
summary judgment on both traditional and no-evidence grounds
on Mejia-Rosa's respondeat superior and negligent
entrustment claims, and on no-evidence grounds on her
remaining claims of gross negligence and negligent hiring,
training, supervision, monitoring, and retention.
filed an unopposed motion to sever asking that the
summary-judgment order be severed from the remaining claims
and parties so that it would be a final, appealable judgment.
The trial court granted Mejia-Rosa's motion but its
severance order (the "original severance order")
did not designate the summary-judgment order as one of the
documents to be transferred to the new cause (the
"severed cause"). And the original severance order
expressly stated that it "does NOT dispose of the
severed case, but will keep the case ACTIVE."
instituted this appeal by filing a notice of appeal in the
underlying cause (the "original cause"). One month
later, on January 19, 2018, the trial court signed an amended
severance order, this time stating that all of
Mejia-Rosa's claims against JMS are severed, and
specifically identifying the summary-judgment order as one of
the documents to be transferred to severed cause. The order
also stated that its purpose was "to render final for
purposes of appeal" May 15, 2015 summary-judgment order.
then timely filed a notice of appeal in the severed cause
(the "second notice of appeal"), which she states
in her reply brief she did "solely out of an abundance
of caution as a result of the confusion that may be caused by
the two different, but very similar cause numbers relating to
the same appeal."
learning that the clerk of this Court treated the second
notice of appeal as its own separate, independent cause with
its own cause number, 01-18-00129-CV (the "second
appeal"), Mejia-Rosa filed an amended notice of appeal
in this cause, asking this Court to consolidate the second
appeal into this appeal. The second appeal was dismissed for
want of prosecution.
conducting our review, we address JMS's contention that
we lack subject-matter jurisdiction to review the
summary-judgment order. See M.O. Dental Lab v. Rape,
139 S.W.3d 671, 673 (Tex. 2004) (reviewing court must ensure
that it has subject-matter jurisdiction before proceeding to
merits of appeal). JMS argues that, when Mejia-Rosa commenced
this appeal by filing her notice of appeal in the original
cause, (1) the summary-judgment order was interlocutory and
(2) JMS was no longer a party. According to JMS, the trial
court's summary-judgment order could only have been
perfected in the severed cause.
a statute allowing an interlocutory appeal, a party may only
appeal from a final judgment. Tex. Civ. Prac. & Rem. Code
§§ 51.012 (authorizing appeal from final judgment
of district or county courts where amount in controversy
exceeds $250), 51.014 (authorizing appeal from certain
interlocutory orders); Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001) (appellate courts have
jurisdiction only over appeals from final judgments and those
interlocutory orders specifically authorized by statute).
When, as here, there has not been a conventional trial on the
merits, an order or judgment is not final for purposes of
appeal unless it actually disposes of every pending claim and
party or clearly and unequivocally states that it does.
Lehmann, 39 S.W.3d at 205; Davati v.
McElya, 530 S.W.3d 265, 266-67 (Tex. App.-Houston [1st
Dist.] 2017, no pet.). Because Mejia-Rosa's claims
against IT-Fountains of Tomball and Henry S. Miller Realty
Management remained pending, the order granting JMS's
summary-judgment motion was interlocutory when she filed the
notice of appeal in the original cause. See Lehmann,
39 S.W.3d at 206 ("As the order recites and as the
record demonstrates, the defendant named in the order was not
the only defendant remaining in the case. Thus, we conclude
that a final and appealable judgment was not rendered . . .
."); see also Butler v. Whitten, No.
02-13-00306-CV, 2014 WL 24232, at *1 (Tex. App.-Fort Worth
Jan. 2, 2014, no pet.) (mem. op.) (orders dismissing
plaintiff's claims against some defendants were
interlocutory because of plaintiff's remaining claims
against other defendants).
may make an otherwise interlocutory summary-judgment order
that disposes of all claims against a party final for
purposes of appeal by severing the cause and party into a
different cause. Avni v. Dosohs I, Ltd., No.
01-15-00459-CV, 2016 WL 2745421, at *1 (Tex. App.-Houston
[1st Dist.] May 10, 2016, no pet.) (mem. op.); see also
Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d
311, 312 (Tex. 1994) (judgment in case involving multiple
parties may be made final as to some parties for purposes of
appeal by trial court's "severing the causes and
parties disposed of by the judgment into a different
the severance order indicates further proceedings are to be
conducted in the severed action, it does not effect a final
judgment. Diversified Fin. Sys., Inc. v. Hill, Heard,
O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795,
795 (Tex. 2001); Avni, 2016 WL 2745421, at *2. Such
is the case with the original severance order here-it did not
include the summary-judgment order in its list of documents
to be transferred to the severed cause and expressly stated
that it "does NOT dispose of the severed case, but will
keep the case ACTIVE." Thus, the summary-judgment order
remained interlocutory. See Diversified Fin. Sys.,
63 S.W.3d at 795 (severance order stating severed claims
would "proceed as such to final judgment or other
disposition in this Court" precluded final judgment in
severed action); Martinez, 875 S.W.2d at 313-14
(severance order permitting additional defendant to be added
to severed "final" judgment was interlocutory).
result, the notice of appeal of the summary-judgment order
Mejia-Rosa filed in the original cause was premature. But it
was not ineffective. Under Texas Rule of Appellate Procedure
27.1(a), when a party files a notice of appeal prematurely,
the notice is "effective and deemed filed on the day of,
but after, the event that begins the period for perfecting
the appeal." Tex.R.App.P. 27.1(a). Following such event,
the judgment becomes final and may be appealed, even without
a separate physical file or different cause number. See
Martinez, 875 S.W.2d at 313.
on January 19, 2018, the trial court amended its severance
order to state that all of Mejia-Rosa's claims against
JMS were severed from the original cause, expressly identify
the summary-judgment order as one of the documents to be
transferred to severed cause, and recite that its purpose was
"to render final for purposes of appeal" May 15,
2015 summary-judgment order, it unequivocally indicated its
intent to make the order final and appealable. See
Lehmann, 39 S.W.3d at 205; Avni, 2016 WL
2745421, at *2. Thus, on January 19, 2018, Mejia-Rosa's
notice of appeal of the original cause became effective.
See Tex. R. App. P. 27.1(a); Alvarado v.
Lexington Ins. Co., 389 S.W.3d 544, 549 & n.5 (Tex.
App.-Houston [1st Dist.] 2012, no pet.) (prematurely filed
notice of appeal effective and deemed filed when trial court
granted motion to sever and rendered final judgment in favor
of defendant); see also Johnson v. Nat'l Indem.
Co., No. 14-15-00197-CV, 2016 WL 6809165, at *1 (Tex.
App.-Houston [14th Dist.] Nov. 17, 2016, no pet.) (mem. op.)
(premature notice of appeal filed pre-severance effective to
appeal interlocutory order made final by severance);
Espalin v. Children's Med. Ctr. of Dallas, 27
S.W.3d 675, 681 (Tex. App.-Dallas 2000, no pet.) ("[A]
document filed in an attempt to appeal an interlocutory order
that later becomes final serves to appeal the final
judgment."). And, because Mejia-Rosa's notice of
appeal of the original cause invoked ...