## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 19

- 00279

- CV

_

__________________________

On Appeal fr om the 352nd District Court Tarrant County, Texas Trial Court No. 352

- 298803

- 18

Before Kerr, Birdwell, and Bassel , JJ. Memorandum Opinion by Justice Kerr 

### G ARY 

### L EE 

### E ASLEY 

### , Appellant

V



### . HSBC B ANK 

### USA, N.A., AS 

### I NDENTURE 

### T RUSTEE OF THE 

### FBR S ECURITIZATION 

### T RUST 

### 2005

- 2, C ALLABLE 

### M ORTGAGE



### - B ACKED 

### N OTES 

### , S ERIES 

### 2005

- 2; AND 

### S PECIALIZED 

### L OAN 

### S ERVICING 

### , LLC , Appellees2 MEMORANDUM OPINION Gary Lee Easley attempts to appeal from a n interlocutory summary

- jud gment order m ade final and appea lable when the t rial court s igned a se verance order on A pril 25, 2019.
E asley s ued thre e de fendants : (1) HSBC Bank USA, N.A., as Inden ture Tru stee of the F BR S e cu ritization Trust 2005

- 2 , Callable Mortgage

- Backed N o tes , Seri e s 2005

- 2 ; (2) Specialized Loan Servicing , LLC ; and ( 3) Superior Lending Mortgage (T X)

. Represented by the same counsel, HSBC Bank and S pecialized Loan Servicing
answered and counterclaim ed and then moved for sum m ary judgment on their

counter claims an d on E asley ’ s claims agains t them

. The trial co u rt signed an order granting H SBC Bank and Sp eci alized L o an Servicing ’ s summary

- judgment motion , ordering that Easl e y take nothing on his claims agai nst them , and orderi ng Easley to
pay $1 4,324 .31 in attorney s ’ fees and costs to HSBC Bank and S p ecialized Loan
Ser vic ing

. On A pril 25, 20 19, the trial court signed an order severing Easley ’ s claims agains t Sup erior Lending Mortgage into a separ a te c ause . The appellate tim etable runs fro m the date the t rial court signs an ord er that
creates a final and appealable judgment

. See Farmer v. Ben E. Keith Co. , 907 S.W.2d 495, 496 (Tex. 1 995) ( “ When a judgment is interlocutory because unadjudicated parti es o r claims remain before the court, a nd when one moves to have such unadjud icated claims or parties rem oved by severance, dismissal, or nonsuit, the appellate timetable runs from the signing of a judgment or order disposing of those claims or parties

. ”)

.3 “ As a rule , the s everance of an interl ocutory judgment into a s eparate cause makes i t final

. ” Diver sifie d Fin. Sys ., Inc. v. Hill, Heard, O ’ Neal, Gilstrap & Goetz, P. C. , 63 S.W.3d 795, 795 (Tex. 2001 ) . A trial court can, ho wever, con dition the severance orde r ’ s effectiveness on a future event

. See McRoberts v. Ry a ls , 863 S.W.2d 45 0, 4 53 n.3 (Tex. 1993) ( “ Of course, th e trial court cou ld have conditioned the effectiveness of the severance on a future certain event, such as the clerk ’ s assigning a cause num ber and payment of fees associated with the severance by the party requesting it. ”)

. But

w

ithout such a c o ndition , a sev erance order is e ffective when the trial court signs it,
even if the trial

- court clerk fa ils to create a s eparate file with a different caus e number.
Id. at 452

– 53

. Here, the summary

- judgment order disposed of Eas l ey ’ s claim s aga inst HSBC
Bank an d Specialized Loan Serv icing and their counterclai ms against E asley. But that
order was interlocutory because Easley ’ s c laims ag ai ns t Superior Len d i ng Mortgage

r emaine d pending. When the trial court signed the A p ril 2 5, 2019 order s ev e r ing t hose unadjudica ted claims into a new cause , the interlocutory summary

- judgment order
became final and appealable.
Eas l e y then moved for a ne w trial on his claims against HSB C B ank and Specialized Loan Servicing and on th eir counterc laims a gainst him

. 1 E as ley ’ s new

- trial

1 We note tha t Easley incorrectly filed his ne w
- tr ial motio n in the new , severed action

. In Philbrook v. Berry , the Texas Supr eme Court h eld that a motion for new trial filed in the wrong act io n “did not operate to extend the court ’ s p lenary power over its jud gment be yon d the thirty days p rescribed by [Rule ] 329b(d)

. ” 683 S.W.2d 3 78,4 motion was due on May 28, 2 019, but he did not file it until Ma y 30, 2019, two days
late. 2 See Tex. R. Civ. P. 4 , 329 b( a ) (requiring a new

- trial m otion to be filed within
30 days o f the t ria l court ’ s si g ning a final judg ment )

. Be cause Easley did not timely

mo ve for a ne w trial , his n otice of appeal was due on Ma y 28 , 2019

. 3 See Tex. R. App.
P. 4.1(a), 26.1 (a)(1 ) (s tating that unless any party timely move s for a new trial, a notice of appea l m ust be filed with in 30 days af ter the judgmen t is s igned ). But Easley did

n ot file his notice of appeal until July 25, 2019

— nearly 60 days late

. We notified the par ties by letter of our c oncern that we l ack jurisdiction over this appeal because Easley ’ s unti me ly file d new

- trial motion did no t exten d his time

379 (Tex. 1985) (orig. proceeding) (op. on reh ’ g) ( “ I n additi on to being filed timely, th e motion for new trial m ust be filed in the same cau se a s the judgment the motion
as sails

. ”). The court ha s yet to explici tly o v errule Ph ilb rook , but i n sub seq uent case s, it has questioned , dis ti n gui shed , or limited Philb rook ’ s holding. See , e.g. , Blankens hip v. Robins , 878 S.W .2 d 138, 138

– 39 (Tex. 1994 ); T ex. Instruments, Inc. v. Teletro n Energy Mgmt., Inc. , 877 S.W.2d 276, 278 (Tex. 1994) ; McRoberts , 863 S.W.2d at 454

– 55 ; City of San A n ton io v. Rodr iguez , 828 S.W.2d 417, 418 (Tex. 1992) ; Mueller v. Saravi a , 826 S.W.2d 608, 609 ( Tex. 19 92)

. Here, however, i t do es not matter in which action Easle y filed his n ew

- trial motion bec ause it was untimely.

2 Th e th irtiet h day after the trial court ’ s si gning of the severance order fell on Saturday, May 25, 2019. The following Mon day was Me mo rial Da y, a legal holiday. Thus, the 30

- day period in which Easle y had to f ile his new

- tri al motion was extended to Tu esday, May 28, 2019

. See Tex. R. Civ. P. 4 ( “ The last day of the per iod so computed is to be included, unless it is a Saturday, S unday, or legal hol iday, in which event t he period r uns until the end of the next da y which is not a Saturday, Sunday, or legal holiday. ”)

.
3 A s with his deadline to move for a new trial, Easley ’ s dea dline to file a notice of appeal was lik ewise e xtended

. S ee Tex. R . App. P. 4.1(a) ( “ The last day o f the peri od is included, but if that day is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sund ay, or legal holiday

. ”).5 for filing a notice of appeal and thus his notice of appeal was untimely

. See T ex. R. App. P. 26 .1(a ) (1). We w arned Easley that if we d e termined that the appeal was not timely p erf ected , we wo uld dis mi ss i t for want of juris diction

. See T ex. R. App. P. 42.3(a), 43.2(f)

. According to Easley ’ s response to our letter , his view is that t he severance was

not effective until May 6, 2019 , when t h e severance orde r was filed with the trial

- court clerk and “ the severed c a use of ac tio n was establis hed a nd assigned a [ cause ]
number

. ” 4 But t he severance order did n ot con dition the effectiveness of th e

se verance on any future event

. See McRoberts , 863 S.W.2d at 4 53 n.3

. The severance

was t hus effective when the tr ial court signed the severance o rder o n A p ril 2 5, 201 9 , see id. at 452

– 53 , which made the summary

- jud gment order final and appeal abl e. S ee Farmer , 907 S.W.2d at 496

. The appellate timetabl es for appealing that order thus ran from April 25, 2 01 9 , the dat e the trial court s i gned the severanc e o rd er . See id. And
because Easley did not timely file his new

- trial motion , his notice of appeal was due

4 Easley i mplies that the cause n umber f or th e se ver ed action was assigned sometime a fter the trial court s igned the severance order on A p ril 25, 2019. We cannot tell from the documents provided to us when the new cause number w as a ssigned. But e ven if the trial did not a ssign a cause num ber unt il a late r d ate, our conclusion he re would be the same. See AZS Holding Co. v. Khosh

- Sirat , No. 05

- 18

- 00845

- CV, 2018 WL 5278730, at *1 (Tex. App.

— Dallas Oct. 24, 2018 , no pet.) (mem. op.) (con clud ing that severance of interlocutory judgment into a s eparate c ause ma de it final even though t he seve rance order left a blank for a new cause number and explaining that “ finality of an unconditional severed judgment ” is not affected by

“ [w]hether the trial court clerk ever creates a p hysically s eparate file or ass i gn s a n e w ca use number ” ).6 wi thin 30 d ays of the se verance order ’ s si gning but was not filed until July 25, 2019

— nearly 60 day s la te
. Absen t a timely filed notice of appeal from a f inal judgment or appe alable interlocutory order, we do not hav e jurisdicti on over an appeal. See Lehman n v. Har

Con Co rp. , 39 S .W. 3d 191, 195 (Tex. 2001)

. Because Easley ’ s not ice of appeal was
untim ely, we di s miss the appeal. See T ex. R. App. P. 42.3(a), 4 3.2(f)

.

/s/ Elizabeth Kerr Elizabeth Kerr Justice
Delivered : November 14, 2019