ACCEPTED
04-15-00466-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/17/2015 1:51:09 PM
KEITH HOTTLE
CLERK
No. 04-15-00466-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
Felix Luera, Jr. and
9/17/2015 1:51:09 PM
Bianca Luera KEITH E. HOTTLE
Clerk
In the Court of
V.
Appeals for the Fourth
District of Texas
Basic Energy
Services, Inc. and
Basic Energy
Services, L.P.
A PPELLEES ’ R EPLY IN S UPPORT OF T HEIR M OTION TO
D ISMISS
T O THE H ONORABLE C OURT OF APPEALS :
Appellees Basic Energy Services, Inc. and Basic Energy
Services, L.P. (collectively, “Basic”) reply as follows to the
Appellants’ Response to Appellees’ Motion to Dismiss.
THE JUDGMENT IN BASIC’S FAVOR AND THE SEVERANCE WERE
EFFECTIVE WHEN SIGNED ON N OVEMBER 20, 2014 1
Texas law is clear that the order of the trial court granting
1
In its motion to dismiss, Basic incorrectly stated the date of the judgment and
severance as November 5, 2014. November 5 was the date Basic’s motion was
submitted, not the date the order granting it was signed. The order was actually signed
on November 20, 2014. (CR 1135-36).This difference in dates is inconsequential,
however, since the Appellants’ notice of appeal was still too late, even considering the
correct date of the order.
summary judgment to Basic and ordering severance was
effective the day it was signed. The supreme court summarized
the rule this way:
The severance order and judgment are effective
immediately and the judgment final and appealable,
whether or not the clerk ever creates a physically
separate file or assigns a new number to it.
McRoberts v. Ryals, 863 S.W.2d 450, 453, n. 4 (Tex. 1993)
(emphasis in original); see also, Marin Real Estate Partners,
L.P. v. Vogt, 373 S.W.3d 57, 93 (Tex. App.— San Antonio 2011,
no pet.).
Given that established principle, it is difficult to
understand the Appellants’ claims that there is no evidence of a
severance, or that the severance was never “effectuated,” or that
after the severance “the jury trial proceeded with [Basic]
remaining in the original cause.” (Response, p. 4.) The order of
severance is in the record itself; as a matter of law, there was
nothing left to do to effectuate it after the judge signed it; and
there is nothing in the record to suggest that Basic participated
at all in the original cause after the order of severance was
signed.
No further steps were required to effectuate the order of
severance
The Appellants’ argument that there is no severance in the
record apparently relies on their contention that one or more
steps remained to be done after the order of severance was
signed before it could become effective. But McRoberts , the
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 2
authorities it cited, and the many cases that have cited
McRoberts all make it clear that the Appellants are wrong.
For example, the severance was effective without regard
to whether the clerk created a new physical file or not.
McRoberts, 863 S.W.2d at 453, n. 4. It was likewise effective
without regard to whether the clerk documented the
assignment of a new cause number to the severed cause. Id.
The order of severance was not conditioned on a future
event
The order of severance was unconditional. The Appellants
cite Jane Doe 1 v. Pilgrim Rest Baptist Church, 218 S.W.3d 81,
82 (Tex. 2007) for the proposition that if a court conditions a
severance on a future event, such as payment of fees associated
with the severance, the severance is not effective until the
condition is met. That makes sense, for if the severance is still
contingent on a future event it is impossible to know on the date
it is signed whether the event will occur; therefore it is
impossible to know that there has in fact been a severance.
But the order of severance in our case contains no
conditioning language. (CR 1135-36). The order’s mere pro
forma instruction to the clerk to assign a new cause number is
not a condition that postpones or suspends the finality of the
order of severance. Marin Real Estate Partners, 373 S.W.3d at
93; Castro v. Inland Sea, Inc., 2015 Tex. App. LEXIS 5015, *5
(Tex. App.—El Paso May 15, 2015, no pet. hist.) (mem. op.);
Zurovec v. Milner, 1996 Tex. App. LEXIS 3224, *3 (Tex. App.—
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 3
San Antonio 1996, no pet.) (not designated for publication). In
fact, a contrary conclusion would contradict the supreme court’s
holdings that an order of severance is effective when it is signed
even if no separate cause number is ever assigned to it.
The inclusion of Basic’s name in the style of other parties’
post-severance pleadings is irrelevant
Appellants emphasize the fact that some documents filed
in the original cause after the order of severance was signed
retained Basic’s name in the style of the case. That fact is
meaningless. Basic had no control over how the other parties
drafted their pleadings after the severance was granted. Their
failure to revise the style of the case after the severance cannot
retroactively invalidate the severance order.
Basic did not “fail to comply” with the order of severance
Appellants argue that the severance was not effective
when it was signed because “there is no evidence that [Basic]
complied with the applicable procedures for effectuating a
severance” and because Basic “failed to comply with the order
of severance.” (Response, pp. 4, 7.) But neither the order of
severance nor any rule or statute required Basic to do anything
to effectuate the severance once the judge had signed the order.
There was therefore nothing to comply with.
Appellants argue, for example, that Basic failed to pay any
fees to the clerk, but the payment of fees is not a precondition to
the effectiveness of an order of severance, either under the
judge’s order in this case or under applicable law. They argue
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 4
that the Appellants failed to “give notice to Appellants that a
new severed cause was properly requested.” The order of
severance itself effected the severance; Appellants do not claim
that they lacked timely notice of that order. If Appellants are
claiming that Basic should have done something else to make
the severance effective and then given notice to the Appellants
that Basic had taken that additional step, their argument is
inconsistent with McReynolds. The severance was effective the
moment it was signed.
The judgment of July 20, 2015 had nothing to do with Basic
Appellants now insist that the final judgment in this cause
was the judgment signed on July 20, 2015 (Response, Ex. A),
and they cite language from that judgment that emphasized its
finality. That judgment may well have been final as to the
parties still remaining in the original cause, but Basic was not
among them; the trial court’s order of November 20, 2014 had
seen to that. The judgment in July of 2015 thus had nothing to
do with Basic.
The July 20, 2015 judgment does not grant any relief to or
from Basic, and the body of the order does not even allude to
Basic’s existence. (Response, Ex. A). The judgment was
approved as to form by the counsel for the plaintiffs and counsel
for defendant Servando Garcia, but there was no blank for
Basic’s lawyer to sign and there is no indication that he ever
even saw, let alone approved, the proposed judgment. The only
place where the words “Basic Energy” can be found anywhere in
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 5
the July 2015 judgment is in the style of the case shown at the
top of the document. As argued earlier, that may say something
about word-processing inertia, but it says nothing to suggest
that the trial court had not meant what it had said in the
November 20, 2014 severance order.
APPELLANTS HAVE MADE NO TIMELY BONA FIDE ATTEMPT TO
INVOKE THE C OURT ’ S APPELLATE JURISDICTION
Appellants argue that their notice of appeal was a bona
fide attempt to invoke the Court’s appellate jurisdiction and
that they have therefore perfected their appeal, citing Grand
Prairie Independent School Dist. v. Southern Parts Imports,
Inc., 813 S.W.2d 499, 500 (Tex. 1991). The Court held in Grand
Prairie that if an appellant timely files a document in a bona
fide attempt to invoke the appellate court's jurisdiction, the
court of appeals must permit amendment if the document is
deficient. The key word is timely.
Basic’s motion to dismiss does not assert that Appellants’
notice of appeal was deficient in form or content or that it was
filed under the wrong cause number. Appellees’ complaint is
that it was untimely. Their notice of appeal, filed some eight
months after the order of severance was signed, may have been
bona fide but it came far too late. It was therefore insufficient.
Kleck Mech. v. Pack Bros. Constr. Co., 930 S.W.2d 190, 191
(Tex. App.—San Antonio 1996, no writ) (per curiam).
The Appellants say this objection is a mere technicality,
and they cite several cases that recognized the validity of a
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 6
motion for new trial filed in a severed cause despite the
motion’s having been filed under the wrong cause number. But
timeliness was not an issue in any of the cases cited by the
Appellants; the issue in each case was whether the filing of the
motion for new trial under an incorrect cause number was
sufficient to extend appellate deadlines. In each case, the court
ruled that it was, but in none did the court rule that an untimely
motion for new trial was sufficient. Thus, none of those cases
supports the Appellants’ claim.
For example, Appellants interpret McRoberts to support
their position. The opposite is true. McRoberts was an appeal
from a summary judgment denying a bill of review. The court of
appeals had ruled that the plaintiff’s attorney in the underlying
lawsuit had been negligent2 as a matter of law in failing to
perfect an appeal because he had filed a motion for new trial
under the wrong cause number after an order of severance and
thus had failed to extend appellate deadlines. Significantly, the
motion for new trial had been filed within 30 days after the
order of severance. McRoberts, 863 S.W.2d at 451.
In reversing the court of appeals, the supreme court
reaffirmed the principle that a severance is effective from the
moment it is signed. McRoberts, 863 S.W.2d at 453. Turning to
the question whether the motion for new trial filed under the
wrong cause number was effective to extend appellate
2
The lawyer’s negligence was at issue because absence of negligence is an element to
be proven in a bill of review.
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 7
deadlines, the Court noted that at the time the motion was due
the clerk had not yet assigned a new cause number to the
severed cause. Thus, the Court reasoned, it would have been
impossible for the lawyer to timely file the motion for new trial
under the new cause number, and therefore it could not be said
as a matter of law that the lawyer had been negligent when he
filed it under the original cause number.
That aspect of the Court’s holding in McReynolds might
support the Appellants if they had filed a notice of appeal under
the original cause number within 30 days after the severance
and if Basic were merely arguing that their notice was
insufficient because it was filed under the wrong cause number.
But the Appellants did not do that, and Basic is not making that
argument. Regardless of what cause number the notice of
appeal was filed under, it came far too late.
The Appellants also cite Mueller v. Saravia, 826 S.W.2d
608, 609 (Tex. 1992), another wrong-number case. There, the
trial court granted a take-nothing judgment in favor of Saravia
and ordered a severance. A new cause number was assigned,
and within a matter of days the court also granted judgment in
favor of the remaining defendant. Within 30 days3 after the
judgment in Saravia’s favor, the plaintiff filed a motion for new
trial under the original cause number, seeking a new trial in
both causes.
3
The judgment in Saravia’s favor had been granted on February 11, and the motion
for new trial was filed on March 7. 826 S.W.2d at 609.
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 8
The appellate court dismissed the appeal on the ground
that the motion for new trial had been filed under the wrong
cause number. The supreme court reversed, holding that the
motion for new trial was a bona fide attempt to invoke appellate
jurisdiction, since it was filed: (i) under the original cause
number in which the judgment was signed; and (ii) within 30
days after the judgment was signed. 826 S.W.2d at 609. It is
this second requirement—timeliness—that Appellants did not
satisfy in our case and on which Basic relies for its motion to
dismiss.
The other case cited by the Appellants along these lines,
Southland Paint Co. v. Thousand Oaks Racket Club, 687
S.W.2d 455, 456 (Tex. App.—San Antonio 1985, no writ) (per
curiam), also presented the issue whether a motion for new trial
filed under the wrong cause number after a severance was
sufficient to extend appellate deadlines. The appellee in
Southland Paint was not seeking dismissal of the appeal on the
ground that the motion for new trial had been untimely filed.4 It
was merely arguing that the motion was ineffective because it
was filed under the wrong cause number. The court rejected
that argument.
Appellants can find no more support in Southland Paint
than they can in McReynolds and Mueller, because the issue in
4
The court’s opinion does not reveal when the severance order was signed or when the
motion for new trial was filed, but the opinion does not suggest that there was ever any
argument about the timeliness of the motion.
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 9
our case is the timeliness of the notice of appeal, not whether it
was filed under the correct cause number.
Appellants cite language from Mueller and Southland
Paint to the effect that an appellant should not be penalized for
failing to comply with an order of severance that the court and
the opposing party ignored. Mueller, 826 S.W.2d at 609;
Southland Paint, 687 S.W.2d at 457. But those statements must
be read in the context of the issue those courts were addressing.
Each case dealt with a timely motion for new trial filed under
the wrong cause number, and the only aspect of the severance
that was arguably ignored was the cause number, not the date.
Neither case held that further action was needed to “effectuate”
an order of severance after it was signed or that an appellant
could wait eight months after a severance before filing a notice
of appeal.
But in any event, neither Basic nor the trial court ignored
the order of severance in this case. After ordering severance, the
trial court took no further action relating to the severed cause
because none was required. The original action proceeded to
trial among the remaining parties and the trial court signed a
judgment as to those parties on July 20, 2015.
Basic did not ignore the order of severance, either. Basic
had no reason to take any further action after the severance was
signed because there was none to take. Once its motion for
summary judgment was granted and the claims against it
severed, there was nothing left to do but wait. After the
expiration of thirty days without the filing of a notice of appeal
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 10
or post-trial motion, the judgment in Basic’s favor became final
in all respects. As far as Basic was concerned at that point, the
case was closed.
Appellants could have filed a timely motion for new trial
Appellants argue that the clerk’s failure to assign a new
cause number made it impossible for them to file a motion for
new trial. (Response, p. 5). They are wrong on both the law and
the facts.
They are wrong on the law, because under the cases cited
by Appellants themselves, a timely motion for new trial filed in
the original cause number would have been effective to extend
appellate deadlines. And they are wrong on the facts, too,
because the absence of a new cause number did not truly deter
the Appellants from filing a motion for new trial. They filed
their notice of appeal under the original cause number (before
the May 20, 2015 judgment that they now seek to characterize
as the final judgment), and they could just as easily have filed a
timely motion for new trial under that cause number. The
absence of a new cause number for the severed cause no more
deterred them from taking one action than the other.
APPELLANTS ’ CONDUCT IS INCONSISTENT WITH THEIR
ARGUMENTS
Appellants’ conduct is inconsistent with their arguments
in other ways. Appellants argue that the judgment signed on
July 20, 2015 was “the” final judgment. They imply that they
had no reason to take any earlier action to challenge the
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 11
November 20, 2014 judgment because they relied on the
absence of a separate cause number for their belief that the
2014 judgment was only interlocutory and not yet appealable.
Aside from the law’s being against them on that point,
their own conduct is, too. The Appellants were not waiting on
the July 20, 2015 judgment to be signed so that they could
appeal the judgment that had been granted in Basic’s favor the
previous year, and they were not misled by the absence of a
separate cause number. They filed their notice of appeal in this
case under the original cause number before the July 20, 2015
judgment was signed. (Response, p. 2). Not only that, their
notice of appeal specifically identified the November 20, 20145
judgment as the judgment they were appealing from. (CR 1137).
Their notice of appeal was filed far too late, of course, but
the fact that they filed it before the July 20, 2015 judgment is
inconsistent with their claim now that they were waiting for the
July 20, 2015 judgment before invoking their right to appeal.
CONCLUSION AND PRAYER
Since the Appellants failed to file a notice of appeal within
30 days after the severed take-nothing judgment in favor of
Basic, they have not perfected their appeal. The Court lacks
jurisdiction over this appeal and should therefore dismiss it.
5
Actually, the notice of appeal referred to the date of the order as November 5, 2014
instead of November 20, 2014, which was the date the order was actually signed, as
Basic pointed out pointed out above. The discrepancy is inconsequential.
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 12
WHEREFORE, Appellees request that the Court dismiss
this appeal.
Respectfully submitted,
/s/ Ken Fields___________
Ken Fields
Texas State Bar No. 06975350
kfields@mcv-law.com
MCKIBBEN & VILLARREAL, L.L.P.
1100 Tower II
555 N. Carancahua
Corpus Christi, Texas 78401-0841
361-882-6611
361-883-8353 (telefax)
Attorneys for Appellees
Basic Energy Services, Inc.
and Basic Energy Services,
L.P.
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument
was served on the other counsel of record, in the manner
indicated below, on September 17, 2015.
/s/ Ken Fields___________
Ken Fields
By e-filing and telefax, (361) 985-0601:
Mr. Russell W. Endsley
THE LAW OFFICES OF THOMAS J. HENRY
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 13
521 Starr Street
Corpus Christi, Texas 78401
Attorney for Appellants
By e-filing and telefax, 210-979-7810:
Ricardo R. Reyna
Brock Person Guerra Reyna, P.C.
17339 Redland Road
San Antonio, Texas 78247
Co- counsel on appeal for Appellees
REPLY IN SUPPORT OF APPELLEES’ MOTION TO DISMISS 14