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Mejia-Rosa v. John Moore Services, Inc.

Court of Appeals of Texas, First District

July 25, 2019

LAURIE MEJIA-ROSA, Appellant
v.
JOHN MOORE SERVICES, INC., Appellee

          On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2014-00998

          Panel consists of Justices Keyes, Higley, and Landau.

          MEMORANDUM OPINION

          Laura Carter Higley Justice.

         Laurie 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 her claims.

         JMS argues that we lack jurisdiction over this appeal. We disagree and affirm the trial court's summary-judgment order.

         Background

         Mejia-Rosa 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.[1]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.

         Mejia-Rosa 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.

         JMS 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.

         In his 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.

         Madden 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.

         The 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.

         In 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."

         In her 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 business purposes.

         Mejia-Rosa 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.

         On May 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.

         Mejia-Rosa 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."

         Mejia-Rosa 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.

         Mejia-Rosa 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."

         Upon 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.

         Jurisdiction

         Before 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.

         Absent 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).

         A court 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 cause").

         But if 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).

         As a 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.

         When, 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 ...


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