George Y. Lohmann, Jr.; Doc Properties, LLC; Midland European Waxing I, LLC; And Midland Double Dave's Pizza, LLC v. EWC Franchise, LLC

Opinion filed October 16, 2025

In The

Eleventh Court of Appeals
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No. 11-24-00095-CV
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GEORGE Y. LOHMANN, JR.; DOC PROPERTIES, LLC;
MIDLAND EUROPEAN WAXING I, LLC; AND MIDLAND
DOUBLE DAVE’S PIZZA, LLC, Appellants
V.
EWC FRANCHISE, LLC, Appellee

On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CV60338

MEMORANDUM OPINION ON MOTION
FOR REHEARING
On September 11, 2025, we issued an opinion in this cause, holding that the
default judgment against Appellants George Y. Lohmann, Jr.; Midland European
Waxing I, LLC (European Waxing); and Midland Double Dave’s Pizza, LLC
(Double Dave’s) was erroneous due to the lack of notice of the default judgment
hearing given to Lohmann and improper substitute service as to European Waxing
and Double Dave’s. Therefore, we reversed the default judgment against those
parties. We affirmed the default judgment against DOC Properties, LLC (DOC
Properties) because being properly served, and having made no appearance, it was
without any entitlement to notice of the setting of a default judgment hearing. See
Schoendienst v. Haug, 399 S.W.3d 313, 316 (Tex. App.—Austin 2013, no pet.)
(“[A] plaintiff may take the default judgment without further notice if the defendant
has not filed a written answer or otherwise ‘appeared’ in the action.” (quoting
Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied))).
Appellants filed a motion for rehearing arguing that when a trial court does
not have personal jurisdiction to render judgment as to certain parties, we must
reverse the judgment as to all parties.
Rule 240 of the Texas Rules of Civil Procedure provides:
Where there are several defendants, some of whom have answered or
have not been duly served and some of whom have been duly served
and have made default, an interlocutory judgment by default may be
entered against those who have made default, and the cause may
proceed or be postponed as to the others.
TEX. R. CIV. P. 240. In support of their argument, Appellants cite Lytle v.
Cunningham, in which the Dallas Court of Appeals stated, “Under [R]ule 240, the
only judgment that could have been properly rendered against a co-defendant
bringing a restricted appeal, absent legal service on a co-defendant, was an
interlocutory judgment unless there was a dismissal as to such co-defendant.”
Lytle v. Cunningham, 261 S.W.3d 837, 841 (Tex. App.—Dallas 2008, no pet.) (first
emphasis added). The court continued, “When there are co-defendants, and the trial
court did not have personal jurisdiction over one defendant, the final judgment as to
all defendants must be reversed.” Id.; see Filegonia Materials, LLC v. Key

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Performance Petroleum Co., No. 05-24-00543-CV, 2025 WL 2108824, at *5 (Tex.
App.—Dallas July 28, 2025, no pet. h.) (mem. op.) (holding same). Appellee filed
a response, to which Appellant filed a reply.
We note that the caselaw cited by Appellants explicitly purports applicability
to a restricted appeal. See TEX. R. APP. P. 30. This is a direct appeal. Accordingly,
we find the authority inapposite. Instead, we look to Rule 44.1(b) of the Texas Rules
of Appellate Procedure, which aptly provides that, “If [trial court] error affects part
of, but not all, the matter in controversy and that part is separable without unfairness
to the parties, the judgment must be reversed and a new trial ordered only as to the
part affected by the error.” See TEX. R. APP. P. 44.1(b). Additionally, “a judgment
may be void in part and valid in part provided the valid portion is not so dependent
on the invalid as to fall with it.” Supak v. Zboril, 56 S.W.3d 785, 795 (Tex. App.—
Houston [14th Dist.] 2001, no pet.) (quoting Kubena v. Hatch, 193 S.W.2d 175, 177
(Tex. 1946)); see Blaylock v. Riser, 354 S.W.2d 134, 137 (Tex. 1962) (“A judgment
may be void as to a severable portion over which the court has no jurisdiction and
valid as to the portion remaining over which it does have jurisdiction.”); cf. Hunt v.
Ramsey, 345 S.W.2d 260, 263 (Tex. 1961) (“It was incumbent upon plaintiffs to see
that the service was perfected upon all the defendants before proceeding to trial; and
if, having tried the case as to some, the others not being properly cited, they fail to
get a verdict, they should not be heard to complain that the judgment is not final as
to all parties.”).
Implicitly recognizing these principles, Texas appellate courts have affirmed
in part and reversed in part default judgments regarding multiple defendants, where
one or more defendants were not served properly, but others were. See, e.g., P & H
Transp., Inc. v. Robinson, 930 S.W.2d 857, 862 (Tex. App.—Houston [1st Dist.]
1996, writ denied); Metcalf v. Taylor, 708 S.W.2d 57, 60 (Tex. App.—Fort Worth
1986, no writ); Ward v. Hooper, No. 05-00-01903-CV, 2002 WL 15881, at *3 (Tex.
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App.—Dallas Jan. 8, 2002, no pet.) (not designated for publication). Here, because
the erroneous part of the judgment is separable without unfairness to the parties,
we need only reverse the part of the judgment affected by the error. See TEX. R.
APP. P. 44.1(b).
We deny Appellants’ motion for rehearing.

W. BRUCE WILLIAMS
JUSTICE

October 16, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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