### No. 04

- 15

- 00466

- CV

Felix Luera, Jr. and Bianca Luera

V.

Basic Energy Services, Inc. and Basic Energy Services, L.P. In the Court of Appeals for the Fourth District of Texas

A PPELLEES 

### ’ R EPLY IN 

### S UPPORT OF 

### T HEIR 

### M OTION TO 

### D ISMISS

T O THE H ONORABLE C OU RT OF A PPEALS : 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

.

T HE JUDGMENT IN B ASIC ’ 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 cons idering the correct date of the order. ACCEPTED 04-15-00466-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/17/2015 1:51:09 PM KEITH HOTTLE CLERKR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 2

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 judgme nt 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, 4 53, 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 A

ppellants ’ cl aims that there is no evidence of a severance, or that the severance was n ever “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 aft er 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 rel ies 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 , theR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 3

authorities it cited, and the many case s that have cited
McRoberts all make it clear that the Appellants are wrong. For example, t he 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
wi thout 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 R est Baptist Church , 218 S.W.3d 81, 82 (Tex. 2007) for the proposition that if a court condition s a severance on a future event, such as payment of fee s associated
with the severance , the severance is not effective until the
condition is met

. That makes sen se, 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 ca se 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.3 d 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.

—R EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 4

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
- sever ance pleadings is irrelevant Appellants emphasize t he fact t hat 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 o ther 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 Appell ants 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, p p

. 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 fail ed 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 argueR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 5

that the Appellants failed to “give notice to Appe llants 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. I f Appellants are claiming that Basic should have done something else to ma ke the severance effective and then give n notice to the Appellants
that Basic had taken that additional step
, th eir argument is
inconsistent with McReynolds . T he 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 t hey cite language from that judgment that emphasized its finality. T hat judgment may well have been final as to the parties still remaining in the original cause , b ut Basic was no t among them ; the trial court’s order of November 20 , 201 4 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 approve d , the proposed judgment. The only place where the words “ Basic Energy ” can be found anywhere inR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 6

the July 2015 judgment is in the style of the case shown at the top of the do cument

. As argued earlier, t hat 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.

A PPELLANTS HAVE MADE NO TIMELY BONA FIDE ATTEMPT TO INVOKE THE C OURT ’ S APPELLATE JURISDIC TION Appellants argue that the ir 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’

n otice of appeal was deficient in form or content or that it was
filed under the wrong cause number . Appellees’ complaint is
that it was untim ely

. Their notice of appeal
, filed so me eight months after the order of severance was signed
, may have been
bona fide but it came far too late

. It was therefore in sufficient. 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 aR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 7

motion for new trial file d 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 th e cases cited by the Appellants ; the issue in each case was whether the filing of the
motion for new trial under a n incorrect cause number was sufficient to extend appellate deadlines. In each case, the court ruled that it was, but in n one did the court rule that an untimely
motion for new trial was sufficient. Thus, none of th ose cases support s 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 negligent 2 as a matter of law in failing to perfect an appeal because he had fil ed 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 4 51. 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 4 53

. 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.R EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 8

deadlines , t he 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

. Th at aspect of the Court’s holding in McReynolds m ight 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 t he Appellants did n o t 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

- n umber 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 w ithin a matter of days the court also granted judgment in
favor of the remaining defendant. Within 30 days 3 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 f

iled on March 7. 826 S.W.2d at 609

.R EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 9 The appellate court dismissed the appeal on the ground
that the motion for new trial had been filed un der the wrong
cause number. The supreme c ourt 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) withi n 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 th e wrong cause number after a severance was sufficient to extend appellate deadlines

. The appellee i n 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 ca use 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.R EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 10

our case is the timeliness of the notice of appeal, not whether it
was filed under the corre ct 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 ; S outhland Paint
, 687 S.W.2d at 457

. But th ose statement s must be read in the context of the issue th ose courts were addressing

. E ach 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 app eal. 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 actio n 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 t he 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 t hirty days without the filing of a notice of appealR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 11

or post

- trial motion , the judgment in Basic’s favor became final in all respects

. A s 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 impossibl e 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 w ould have be en 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 origi nal 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

.

A PPELLANTS ’ CONDUCT IS INCONSIST ENT WITH THEIR ARGUMENT S Appellants’ conduct is inconsistent with their arguments in other ways. Appellants argue that the judgment signed on July 20, 201 5 w as “ the ” final judgment . They imply th at they had no reason to take any earlier action to challenge theR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 12

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
, the ir own conduct is, too. T he Appellants were not waiting on the July 20 , 2015 judgment to be signed so that they could appeal the judgment that had been granted i n Basic’s fa vor the previous year , and they were not misled by the absence of a separate cause number . T hey 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, t heir

n otice of appeal specifically identified the November 20 , 2014 5 judgment as the judgment they were appealing from

. (CR 1137).

T h eir notice of appeal was filed far too late, of course, but
the fact that they filed it before the July 20, 2015 judgment is
incon sistent with their claim now that the y were waiting for the July 20, 2015 judgment before invoking their right to appeal.

C ONCLUSION AND P RAYER 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 ac tually signed
, as Basic pointed out pointed out above . The discrepancy is inconsequential

.R EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 13 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

M C K IBBEN & V ILLARREAL , L.L.P. 1100 Tower II 555 N. Carancahua Corpus Christi, Texas 784 01

- 0841 361

- 882

- 6611 361

- 883

- 8353 (telefax)

Attorneys for Appellees Basic Energy Services, Inc. and Basic Energy Services,
L.P.

C ERTIFICATE OF S ERVICE This is to certify that a cop y of the foregoing instrument

was served on the other counsel of record, in the manner indicated below, on September 1 7 , 2015

.

/s/ Ken Fields

___

_ _______ Ken Fields

By e

- filing and telefax

, (361) 985

- 0601 :
Mr. Russell W. Endsley THE LAW OFFICES OF THOMAS J. HENRYR EPLY IN S UPPORT OF A PPELLEES ’ MOTION TO DISMISS 14

521 Starr Street Corpus Christi, Texas 7840 1 Attorney f

or Appellants

By e

- filing and telefax

, 210

- 979

- 7810 : Ricardo R. Reyna Broc k Person Guerra Reyna, P.C. 17339 Redland Road San Antonio, Texas 78247 Co

- counsel on appeal for Appellees