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

APPELLEES’ REPLY IN SUPPORT OF THEIR MOTION TO 

DISMISS

TO THE HONORABLE COURT 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 NOVEMBER 20, 20141

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. 

ACCEPTED

04-15-00466-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

9/17/2015 1:51:09 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 9/17/2015 1:51:09 PM KEITH E. HOTTLE Clerk
REPLY IN SUPPORT OF APPELLEES’ 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 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 3

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 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-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 5

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 6

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 COURT’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 7

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 negligent2as 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 8

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 days3after 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 9

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.4It 

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 10

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 11

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 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, 

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 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

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 14

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