Opinion
14-22-00953-CV
01-19-2023
IN RE DEFY INTERNATIONAL, LLC, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS 180th District Court Harris County, Texas Trial Court Cause No. 2018-32675
Panel consists of Justices Wise, Jewell, and Hassan.
MEMORANDUM OPINION
PER CURIAM
On December 30, 2022, relator Defy International, LLC filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Scott Dollinger, presiding judge of the 180th District Court of Harris County, to vacate his October 19, 2022 amended order granting severance and abatement, creating a severed action, and rendering a final judgment.
Real parties in interest are James Thang, Jennifer Nguyen, Susie Thang, and BB Ventures, Ltd., both Individually and d/b/a Shepherd Commons.
Background
Defy entered into a commercial lease with the real parties in interest as landlord. There was a dispute as to representations by real parties in interest. Defy sued real parties in interest for breach of contract, fraud, negligent misrepresentation, and promissory estoppel, among other claims and theories of liability. The parties filed summary judgment motions. Prior to the trial court ruling on the summary judgment motions, the parties outlined a framework for a settlement and exchanged numerous drafts of settlement documents. Eventually, a dispute arose as to whether the parties had reached a settlement.
Real parties in interest contend that a settlement agreement exists, and on February 9, 2022, they filed a petition to enforce the agreement. On July 13, 2022, real parties in interest filed a motion for final summary judgment, asserting that Defy had materially breached the settlement agreement. On July 25, 2022, Defy filed a motion for partial summary judgment, arguing that no settlement agreement existed. On August 16, 2022, the trial court signed an order denying real parties in interest's motion for final summary judgment and granting Defy's motion for partial summary judgment.
On August 21, 2022, real parties in interest filed a motion to sever the settlement issues and to abate all remaining claims. The trial court signed an order granting real parties in interest's motion on October 3, 2022, and an amended order on October 19, 2022. The trial court severed the claims and defenses related to the settlement agreement between relator and real parties in interest from the original claims and abated the original case until further order of the court. The trial court further ordered that all parties and all claims, counterclaims, and defenses related to the purported settlement agreement in the severed action were disposed and the order is a final and appealable judgment.
Real parties in interest appealed from the October 3, 2022 order on October 17, 2022. Defy cross-appealed from October 19, 2022 amended order-the same order from which Defy seeks relief in this original proceeding-on November 2, 2019.
Judge Dollinger ceased to hold office of the 189th District Court. On January 5, 2023, pursuant to Ruled 7.2(b) of the Texas Rules of Appellate Procedure, we issued an order abating this proceeding to permit Judge Dollinger's successor, the Honorable Tamika Craft, to consider the decision regarding relator's request for relief. See Tex. R. App. P. 7.2(b). That same day, real parties in interest filed a motion to reconsider the abatement order.
Analysis
"If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party's decision." Tex.R.App.P. 7.2(b). "However, if mandamus relief is not appropriate in this case due to the availability of an adequate remedy by appeal, there is no threat that the successor judge will be subject to mandamus based on an order made by [the] predecessor. When there is no possibility that mandamus relief will be granted, the purpose of rule 7.2(b) is not served by requiring the successor judge to reconsider the predecessor's ruling." In re James Constr. Grp., LLC, No. 14-16-00966-CV, 2017 WL 177671, at *1 (Tex. App.-Houston [14th Dist.] Jan. 13, 2017, orig. proceeding [mand. denied]) (mem. op.) (quoting In re Pfiffner, No. 05-15-01208-CV, 2015 WL 5783806, at *1 (Tex. App.-Dallas Oct. 5, 2015, orig. proceeding (mem. op.)).
To be final, a judgment or order either must state clearly and unequivocally that it disposes of all claims and parties, or it must dispose of every pending claim and party regardless of its language. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). When a suit is severed, two or more independent lawsuits result, and each is resolved by its own final appealable judgment. Offord v. W. Houston Trees, Ltd., No. 14-16-00532-CV, 2018 WL 1866044, at *2 (Tex. App.-Houston [14th Dist.] Apr. 19, 2018, no pet.) (mem. op.). In general, a judgment or order becomes final upon severance if it disposes of all claims and parties in the severed action, unless the order of severance indicates that further proceedings are to be had in that action. Id.
The subject severance order clearly and unequivocally states that it is a final judgment, disposing of all parties and all claims, counterclaims, and defenses related to the settlement agreement so that real parties in interest may appeal the order. See Lehmann, 39 S.W.3d at 200. There is no language indicating that further proceedings would occur in the severed case. See Offord, 2018 WL 1866044, at *2.
To be entitled to mandamus relief, Defy must establish that (1) the trial court abused its discretion; and (2) no adequate remedy by appeal exists. See In re Auburn Creek Ltd. P'ship, No. 21-0886-CV, 2022 WL 17365718, at *2 (Tex. Dec. 2, 2022) (orig. proceeding) (per curiam). The judgment is final in the severed case; therefore, Defy has an adequate remedy by appeal. See In re Catt, No. 14-16-00572-CV, 2016 WL 4146826, at *1 (Tex. App.-Houston [14th Dist.] Aug. 4, 2016, orig. proceeding) (mem. op.) ("Because the trial court signed a final judgment, relator has an adequate remedy by appeal."). Because an adequate remedy by appeal exists, Rule 7.2(b) is not served by requiring Judge Craft to reconsider her predecessor's ruling. See James Constr. Grp., LLC, 2017 WL 177671, at *1.
We grant real parties in interest's motion to reconsider the abatement and lift our abatement issued on January 5, 2023. We reinstate this case on the court's docket.
Defy has not established that it is entitled to mandamus relief. Accordingly, we deny relator's petition for writ of mandamus. We also deny Defy's motion to abate as moot.
The court issued the January 5, 2023 abatement order on its own motion. Defy filed its motion to abate this original proceeding based on Rule 7.2(b) just before the order issued. Our January 5 abatement order did not rule on Defy's motion to abate, and we now deny the motion as moot.