Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 352nd District Court Tarrant County, Texas
Trial Court No. 352-298803-18
Kerr, Birdwell, and Bassel, JJ.
Elizabeth Kerr, Justice
Lee Easley attempts to appeal from an interlocutory
summary-judgment order made final and appealable when the
trial court signed a severance order on April 25, 2019.
sued three defendants: (1) HSBC Bank USA, N.A., as Indenture
Trustee of the FBR Securitization Trust 2005-2, Callable
Mortgage-Backed Notes, Series 2005-2; (2) Specialized Loan
Servicing, LLC; and (3) Superior Lending Mortgage (TX).
Represented by the same counsel, HSBC Bank and Specialized
Loan Servicing answered and counterclaimed and then moved for
summary judgment on their counterclaims and on Easley's
claims against them. The trial court signed an order granting
HSBC Bank and Specialized Loan Servicing's
summary-judgment motion, ordering that Easley take nothing on
his claims against them, and ordering Easley to pay $14,
324.31 in attorneys' fees and costs to HSBC Bank and
Specialized Loan Servicing. On April 25, 2019, the trial
court signed an order severing Easley's claims against
Superior Lending Mortgage into a separate cause.
appellate timetable runs from the date the trial court signs
an order that creates a final and appealable judgment.
See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496
(Tex. 1995) ("When a judgment is interlocutory because
unadjudicated parties or claims remain before the court, and
when one moves to have such unadjudicated claims or parties
removed by severance, dismissal, or nonsuit, the appellate
timetable runs from the signing of a judgment or order
disposing of those claims or parties."). "As a
rule, the severance of an interlocutory judgment into a
separate cause makes it final." Diversified Fin.
Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz,
P.C., 63 S.W.3d 795, 795 (Tex. 2001). A trial court can,
however, condition the severance order's effectiveness on
a future event. See McRoberts v. Ryals, 863 S.W.2d
450, 453 n.3 (Tex. 1993) ("Of course, the trial court
could have conditioned the effectiveness of the severance on
a future certain event, such as the clerk's assigning a
cause number and payment of fees associated with the
severance by the party requesting it."). But without
such a condition, a severance order is effective when the
trial court signs it, even if the trial-court clerk fails to
create a separate file with a different cause number.
Id. at 452-53.
the summary-judgment order disposed of Easley's claims
against HSBC Bank and Specialized Loan Servicing and their
counterclaims against Easley. But that order was
interlocutory because Easley's claims against Superior
Lending Mortgage remained pending. When the trial court
signed the April 25, 2019 order severing those unadjudicated
claims into a new cause, the interlocutory summary-judgment
order became final and appealable.
then moved for a new trial on his claims against HSBC Bank
and Specialized Loan Servicing and on their counterclaims
against him. Easley's new-trial motion was due on
May 28, 2019, but he did not file it until May 30, 2019, two
days late. See Tex. R. Civ. P. 4, 329b(a)
(requiring a new-trial motion to be filed within 30 days of
the trial court's signing a final judgment). Because
Easley did not timely move for a new trial, his notice of
appeal was due on May 28, 2019. See Tex. R. App. P.
4.1(a), 26.1(a)(1) (stating that unless any party timely
moves for a new trial, a notice of appeal must be filed
within 30 days after the judgment is signed). But Easley did
not file his notice of appeal until July 25, 2019-nearly 60
notified the parties by letter of our concern that we lack
jurisdiction over this appeal because Easley's untimely
filed new-trial motion did not extend his time for filing a
notice of appeal and thus his notice of appeal was untimely.
See Tex. R. App. P. 26.1(a)(1). We warned Easley
that if we determined that the appeal was not timely
perfected, we would dismiss it for want of jurisdiction.
See Tex. R. App. P. 42.3(a), 43.2(f).
to Easley's response to our letter, his view is that the
severance was not effective until May 6, 2019, when the
severance order was filed with the trial-court clerk and
"the severed cause of action was established and
assigned a [cause] number." But the severance order did
not condition the effectiveness of the severance on any
future event. See McRoberts, 863 S.W.2d at 453 n.3.
The severance was thus effective when the trial court signed
the severance order on April 25, 2019, see id. at
452-53, which made the summary-judgment order final and
appealable. See Farmer, 907 S.W.2d at 496. The
appellate timetables for appealing that order thus ran from
April 25, 2019, the date the trial court signed the severance
order. See id. And because Easley did not timely
file his new-trial motion, his notice of appeal was due
within 30 days of the severance order's signing but was
not filed until July 25, 2019- nearly 60 days late.
a timely filed notice of appeal from a final judgment or
appealable interlocutory order, we do not have jurisdiction
over an appeal. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). Because Easley's notice of
appeal was untimely, we dismiss the appeal. See Tex.
R. App. P. 42.3(a), 43.2(f).
We note that Easley incorrectly filed
his new-trial motion in the new, severed action. In
Philbrook v. Berry, the Texas Supreme Court held
that a motion for new trial filed in the wrong action
"did not operate to extend the court's plenary power
over its judgment beyond the thirty days prescribed by [Rule]
329b(d)." 683 S.W.2d 378, 379 (Tex. 1985) (orig.
proceeding) (op. on reh'g) ("In addition to being
filed timely, the motion for new trial must be filed in the
same cause as the judgment the motion assails."). The
court has yet to explicitly overrule Philbrook, but
in subsequent cases, it has questioned, distinguished, or
limited Philbrook's holding. See, e.g.,
Blankenship v. Robins, 878 S.W.2d 138, 138-39 (Tex.
1994); Tex. Instruments, Inc. v. Teletron Energy Mgmt.,
Inc., 877 S.W.2d 276, 278 (Tex. 1994);
McRoberts, 863 S.W.2d at 454-55; City of San
Antonio v. ...