Motion Granted; Appeal Dismissed and Memorandum Opinion filed April 28,
2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00194-CV
VICNRG LLC, Appellant
V.
FCSTONE, LLC, FCSTONE TRADING, LLC AND FCSTONE GROUP,
INC., Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2013-05124B
MEMORANDUM OPINION
This is an attempted appeal from a judgment that became final and
appealable when a severance order was signed on October 29, 2014. No timely
post-judgment motion was filed. Appellant’s notice of appeal was filed on
February 20, 2015. Appellant’s notice of appeal was not timely because it was due
within 30 days of the date on which the judgment became final and appealable. See
Tex. R. App. P. 26.1..
On March 18, 2015, appellees FCStone, LLC, FCStone Trading, LLC and
FCStone Group, Inc. (collectively “FCStone”), filed a motion to dismiss the appeal
for want of jurisdiction. See Tex. R. App. P. 42.3(a).
In the underlying suit, appellant VicNRG sued Fuel Streamers, Inc., Green
Diesel, LLC, and FCStone. On August 1, 2014, the trial court granted a partial
summary judgment in favor of FCStone on all claims asserted against FC Stone.
On October 6, 2014, FCStone moved to sever all claims and causes of action
alleged against it. In the motion, FCStone “request[ed] that the Court order the
cause between Plaintiff and Defendants [FCStone] be severed and made the subject
of a separate suit; that the Court sign a Final Judgment in the severed case making
the Interlocutory Order granting summary judgment previously entered herein
final; and that FCStone be granted any and all other relief to which it may show
itself entitled.” On October 29, 2014, the trial court signed an order granting the
motion for severance. On February 4, 2015, VicNRG filed a motion for entry of
final judgment or, alternatively, motion to extend post-judgment deadlines. On
February 20, 2015, VicNRG filed a conditional notice of appeal.
As a rule, severance of an interlocutory judgment into a separate action
makes it final, unless the order of severance indicates further proceedings are to be
conducted in the severed action. See Diversified Fin. Sys., Inc. v. Hill, Heard,
O'Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex. 2001) (severed action
remained interlocutory where severance order stated action would “proceed as
such to final judgment or other disposition”); Martinez v. Humble Sand & Gravel,
Inc., 875 S.W.2d 311, 313–14 (Tex. 1994) (severance order permitting additional
defendants to be added to severed action was interlocutory).
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The appellate timetable runs from the signing date of an order that creates a
final and appealable judgment. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495,
496 (Tex. 1995); Martinez, 875 S.W.2d at 313. An order of severance is effective
when signed even if the clerk fails to create a separate file with a different cause
number. See McRoberts v. Ryals, 863 S.W.2d 450, 452–53 (Tex. 1993).
The partial summary judgment signed on August 1, 2014 disposed of all
claims by VicNRG against FCStone. This order was interlocutory before severance
because of the remaining unadjudicated claims against Fuel Streamers and Green
Diesel. On October 29, 2014, the trial court signed an order severing all causes of
action against FCStone into a new cause number. The severance order did not
indicate that further proceedings were to be conducted in the severed action. See
Diversified, 63 S.W.3d at 795; Martinez, 875 S.W.2d at 313. Neither the partial
summary judgment nor the severance order contains express “finality” language;
the severance order nonetheless disposed of all unadjudicated issues and parties,
thereby making the partial summary judgment final and appealable. See Farmer,
907 S.W.2d at 496; Martinez, 875 S.W.2d at 313. Thus, the appellate timetable for
appealing the partial summary judgment ran from the date of the order of
severance signed on October 29, 2014. Farmer, 907 S.W.2d at 496. No notice of
appeal or motion for new trial was filed within 30 days of this order.
VicNRG’s response to the motion to dismiss fails to demonstrate that this
court has jurisdiction to entertain the appeal.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Boyce, McCally, and Donovan.
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