Opinion issued August 30, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00254-CV

———————————

ELIZABETH A. LOUSTEAU AND BRETT CLANTON, Appellants

V.

JAIME L. NORIEGA AND SONIA A. NORIEGA, Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2013-35448-B

MEMORANDUM OPINION

Appellants, Elizabeth A. Lousteau and Brett Clanton, challenge the trial 

court’s judgment, entered after a jury trial, in favor of appellees, Jaime L. Noriega 

and Sonia A. Noriega (“the Noriegas”), in the Noriegas’ declaratory-judgment
2

action against Lousteau and Clanton.

1

 In seven issues, Lousteau and Clanton

contend that the trial court erred in submitting a question to the jury on an 

immaterial fact; disregarding the jury’s finding on a material fact; concluding that 

their affirmative defense was not tried by consent; not issuing a final judgment; 

awarding damages; and severing the case.

We reverse and remand.

Background

In their “First Amended Petition for Bill of Review, Application for 

Injunctive Relief, and Suit for Declaratory Relief,”2the Noriegas asserted that 

Lousteau and Clanton had sued them for trespass and nuisance, alleging that water 

runoff from a structure on the Noriegas’ property (the “Goldenrod property”) had 

caused flooding that damaged Lousteau and Clanton’s adjacent property.3 After 

the trial court signed a default judgment in their favor, Lousteau and Clanton 

obtained a writ of execution on the Goldenrod property, and they purchased it at a 

 

1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001–.011 (Vernon 2015).

2

Jaime L. Noriega and Sonia A. Noriega v. Elizabeth A. Lousteau and Brett 

Clanton, No 2014-14152 (151st Dist. Ct., Harris Cty., Tex.). “A bill of review is 

an independent action to set aside a judgment that is no longer appealable or 

subject to challenge by a motion for new trial.” Wembley Inv. Co. v. Herrera, 11 

S.W.3d 924, 926–27 (Tex. 1999); see also Urso v. Lyon Fin. Servs., Inc., 93 

S.W.3d 276, 280 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“A bill of 

review is a new suit filed in same court [that] render[ed] the original judgment.”).

3 Elizabeth A. Lousteau and Brett Clanton v. Jaime L. Noriega and Sonia A. 

Noriega, No. 2013-35448 (151st Dist. Ct., Harris Cty., Tex.).
3

constable’s sale on March 4, 2014. In their petition for bill of review, the Noriegas 

argued that they were entitled to have the default judgment and the 

“sheriff’s/constable’s sale and deed set aside” because they were not served with 

Lousteau and Clanton’s lawsuit. They asserted that they did not become aware of 

the lawsuit until their tenant at the Goldenrod property “told them that Lousteau 

had come over and stated that she [had] bought the property” and directed the 

tenant to leave. The Noriegas also sought a declaration that the Goldenrod 

property is their homestead and “thus exempt from seizure and execution.” And 

they requested a temporary injunction to enjoin Lousteau and Clanton from 

accessing or taking any action regarding the Goldenrod property; disturbing the 

Noriegas’ tenant or taking any rents; encumbering or transferring the property; or 

filing their constable’s deed in the real property records. In their supplemental 

petition, the Noriegas brought a wrongful-execution claim against Lousteau and 

Clanton, seeking damages for lost rental income accruing since April 2014 and 

“the costs to repair physical changes [that Lousteau and Clanton] ha[d] made to the 

[p]roperty during their possession of it via the constable’s deed.” 

In their third amended answer, Lousteau and Clanton generally denied the 

Noriegas’ allegations and abandoned their previous counterclaim and affirmative 

defenses. Subsequently, however, Lousteau and Clanton filed a written 
4

“Stipulation” that the Noriegas had “not [been] served with process” in the 

underlying suit for trespass and nuisance. 

On November 4, 2014, the Noriegas, “[b]ased on” Lousteau and Clanton’s 

stipulation, filed a “Pre-Trial Motion to set Aside Default Judgment, Execution and 

Constable’s Deed,” in which they re-urged their petition for bill of review. They 

asserted that the trial court “should set aside” the default judgment and “should 

likewise and necessarily set aside and void the writ of execution issued thereon and 

the purported Constable’s Deed issued pursuant to the writ of execution on the 

default judgment.” 

On November 7, 2014, the trial court signed an order4setting aside its 

default judgment, as follows:

On this day, the Court considered the [Noriegas’] Pre-Trial 

Motion to set Aside Default Judgment, Execution and Constable’s 

Deed. . . . Having considered the motion, the response, if any, 

admissions of the parties, arguments of counsel, and the applicable 

law, the Court is of the opinion that [the] motion is well taken and 

should be and is hereby GRANTED.

IT IS THEREFORE ORDERED that the Final Order on 

Motion[] for Default Judgment . . . [is] hereby set aside, and [is] 

VOID AB INITIO.

 

4 Documents relevant to the trial court proceedings underlying this appeal are 

included in the clerk’s record filed in this Court’s Cause No. 01-15-00341-CV, 

Elizabeth A. Loustea and Brett Clanton v. Jaime L. Noriega and Sonia A. Noriega. 

We may take judicial notice of our own records involving the same parties and 

subject matter. See Douglas v. Am. Title Co., 196 S.W.3d 876, 877 n.1 (Tex. 

App.—Houston [1st Dist.] 2006, no pet.).
5

Later the same day, the parties tried to a jury the Noriegas’ declaratory 

action. The parties argued to the jury5that the “sole” issue for it to “decide and 

confirm” was whether the Goldenrod property was the Noriegas’ homestead. And 

the trial court instructed the jury to answer the following questions: 

Question No. 1

Do you find that the real property and improvements commonly 

known as [the Goldenrod property] was the homestead of [the 

Noriegas] when they purchased the property in December 1994?

. . . . 

Answer: Yes

Question No. 2

Do you find that the real property and improvements commonly 

known as [the Goldenrod property] was the homestead of [the 

Noriegas] on March 4, 2014?

. . . .

Answer: No

Subsequently, on December 22, 2014, the trial court signed an “Interlocutory 

Judgment,” noting that trial was had to a jury on “the limited issue of whether the 

[Goldenrod property] was [the Noriegas’] homestead.” The trial court concluded

 

5

In her opening statement to the jury, counsel for the Noriegas noted, “[T]he only 

issue we’re bringing to you today is to decide and confirm that the 314 Goldenrod 

property is the Noriegas’ homestead. You’re only going to hear my case.” In her 

opening statement to the jury, counsel for Lousteau and Clanton noted, “The sole 

issue for you to decide today is whether or not 314 Goldenrod was declared as the 

[Noriegas’] homestead on March 4th, 2014.” And in closing, counsel for 

Lousteau and Clanton emphasized, “So you are here to determine whether the 

Noriegas . . . showed you [by] a preponderance of the evidence that this property 

was not just their home, but was their homestead in December of 1994. 

And . . . whether it was their homestead on March 4th of 2014.”
6

that the jury’s answer to the first question was “material and dispositive” and its 

answer to the second question was “immaterial” and “disregarded.” The trial court 

noted that it had, by its November 7, 2014 order, already “set aside the underlying 

default judgment,” “as well as released the bonds and other monies in the registry 

of the Court to [the Noriegas].” However, “[t]o the extent that is not clear in the 

November 7, 2014 Order, the same is hereby” ordered. And the trial court set 

aside the constable’s deed as “void ab initio,” restoring “[a]ll property rights” in 

the Goldenrod property to the Noriegas and ordering that Lousteau and Clanton 

turn over possession of the property to the Noriegas. 

On February 13, 2015, the trial court signed an order6consolidating, under 

cause number 2013-35448, Lousteau and Clanton’s trespass and nuisance suit 

(cause number 2013-35448) and the Noriegas’ bill of review, declaratory-judgment 

action on the homestead issue, and wrongful-execution claim for damages (cause 

number 2014-14152). In its order, the trial court explained: 

After completion of a limited jury trial on [the Noriegas’] 

declaratory judgment cause of action regarding whether [the 

Goldenrod property] was [the Noriegas’] homestead at times material 

to the suit, the Court entered an Interlocutory Judgment on December 

22, 2014. The Interlocutory Judgment generally held, among other 

things, that [the Goldenrod property] was and is [the Noriegas’] 

homestead and that, for the reason stated therein, they were entitled 

to the return of the home (rather than having to sue for its fair market 

value) under the authority of Salomon v. Lesay, 369 S.W.3d 540, 

554–57 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Further, 

 

6 See supra note 5.
7

because [Lousteau and Clanton] conceded the bill of review issues 

immediately before trial, the Court set aside the underlying default 

judgment in cause number 2013-35548.

The issues which remain to be tried—and which were 

dependent on the outcome of the bill of review and declaratory 

judgment causes of action—include (subject to amendment): (1) any 

liability and damage claim by [the Noriegas] for wrongful execution; 

(2) any third party claims . . . ; [and] (3) [Lousteau and Clanton’s] 

claims [for trespass and nuisance] in the underlying lawsuit . . . . It is 

the Court’s desire to try all of these matters together.

The trial court, also on February 13, 2015, then signed an “Order of 

Severance,” stating as follows:

The Court hereby sua sponte severs its December 22, 2014 

Interlocutory Judgment regarding [the Noriegas’] Bill of Review and 

Declaratory Judgment causes of action against [Lousteau and Clanton] 

from the remainder of this consolidated case.

It is therefore ORDERED that [the Noriegas’] causes of action 

for Bill of Review and Declaratory Judgment, as adjudicated in the 

Court’s December 22, 2014 Interlocutory Judgment . . . are hereby 

severed from this consolidated case into a new cause [Cause No. 

2013-35448-B].

. . . .

It is further ORDERED that the entry of this Order shall 

immediately make the Court’s December 22, 2014 Interlocutory 

Judgment . . . into a final and appealable Judgment, disposing of all 

claims and all parties in that newly severed cause, 2013-35448-B.

On March 11, 2015, the trial court vacated its February 13, 2015 “Order of 

Severance” “only insofar as it severed the Bill of Review cause of action.” The 

trial court explained:

The Court’s February 13, 2015 Order is hereby UNCHANGED as to 

the declaratory judgment cause of action that was tried in 2014-14152 
8

and then consolidated into 2013-35448. The Court’s judgment on that 

cause of action remains final and appealable from within 2013-35448-

B.

To be clear, by vacating the February 13, 2015 Order in part, it is the 

Court’s intent and Order that the Bill of Review cause of action is 

now consolidated back into the 2013-35448 main case where it will sit 

until it is made part of a final judgment in that case on the remaining 

issues therein, or until further order of this Court.

(Emphasis added.) 

Lousteau and Clanton then filed notices of appeal in trial court cause 

numbers 2013-35448 and 2013-35448-B, challenging the trial court’s December 

22, 2014 interlocutory judgment; February 13, 2015 consolidation and severance 

orders; and March 11, 2015 order. We dismissed the appeal for lack of jurisdiction 

in trial court cause number 2013-35448. Lousteau v. Noriega, No. 01-15-00341-

CV, 2015 WL 6081385, at *2–3 (Tex. App.—Houston [1st Dist.] Oct. 13, 2015, no 

pet.) (mem. op.). The instant appeal is from trial court cause number 2013-35448-

B, which contains only the Noriegas’ declaratory-judgment action on the 

homestead issue.

Severance

In their fifth issue, Lousteau and Clanton argue that the trial court erred in 

“not issuing a final judgment” on the Noriegas’ claims because “the wrongful 

execution claim was on the live pleadings at the time of trial”; “the record 

shows . . . no orders severing/bifurcating it before trial commenced”; and the 
9

“record is clear” that the Noriegas “waived” their wrongful-execution claim “by 

failing to pursue it at trial.” In their seventh issue, Lousteau and Clanton argue that 

the trial court erred in “severing the wrongful execution claim”7 because it did so 

“after” the “case” “ha[d] gone to a jury.” They assert that the trial court’s 

“severance should be disregarded by this Court and a final judgment that provides 

a ruling that the wrongful execution was waived in the jury trial should be 

rendered.” 

A trial court has broad discretion to order separate trials on certain issues or 

claims. See Patterson v. Brewer Leasing, Inc., 490 S.W.3d 205, 222 (Tex. App.—

Houston [1st Dist.] 2016, no pet.); Barnes v. Deadrick, 464 S.W.3d 48, 58–59 

(Tex. App.—Houston [1st Dist.] 2015, no pet.). A trial court, “in furtherance of 

convenience or to avoid prejudice[,] may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number 

of claims, cross-claims, counterclaims, third-party claims, or issues.” TEX. R. CIV.

P. 174(b). A separate trial “leaves the lawsuit intact but enables the court to hear 

and determine one or more issues without trying all controverted issues at the same 

hearing.” Hall v. City of Austin, 450 S.W.2d 836, 838 (Tex. 1970). “The order 

 

7 As discussed above, the trial court, in its “Order of Severance,” severed the 

Noriegas’ “causes of action for Bill of Review and Declaratory Judgment, as 

adjudicated in the Court’s December 22, 2014 Interlocutory Judgment.” And it 

subsequently vacated its severance of the bill-of-review action, leaving only the 

declaratory action in the severed cause. The Noriegas’ wrongful-execution claim, 

which was not “adjudicated,” was not severed. 
10

entered at the conclusion of a separate trial is often interlocutory, because no final 

and appealable judgment can properly be rendered until all of the controlling issues 

have been tried and decided.” Id.; see Christopher Columbus St. Mkt. LLC v. 

Zoning Bd. of Adjustments of City of Galveston, 302 S.W.3d 408, 414 (Tex. 

App.—Houston [14th Dist.] 2009, no pet.).

Here, as discussed above, the record shows that the trial court and the parties 

proceeded to a jury trial on the limited issue of determining the Noriegas’ 

declaratory-judgment action on their homestead claim. See Tarrant Reg’l Water 

Dist. v. Gragg, 151 S.W.3d 546, 556 (Tex. 2004) (trial court authorized to order 

separate trial on any issue in interest of convenience or to avoid prejudice);

Christopher Columbus St. Mkt. LLC, 302 S.W.3d at 413 (“It is clear that the parties 

and the district court agreed to proceed with the [plaintiffs’] claims under a 

bifurcated structure with separate proceedings . . . .”); see also Barnes, 464 S.W.3d 

at 59 (“treat[ing] the procedure utilized” by trial court “as a separate trial”). To the 

extent they complain that the trial court erred in conducting a separate trial on the 

Noriegas’ homestead claim, Lousteau and Clanton do not direct us to any point in 

the record in which they objected, before or during trial, and thus such complaint is 

waived. See TEX. R. APP. P. 33.1(a) (preservation of complaint for appellate 

review requires timely request, objection, or motion with sufficient specificity to 

apprise trial court of complaint); Christopher Columbus St. Mkt. LLC, 302 S.W.3d 
11

at 413 (complaint that trial court conducted separate trial of discrete issue waived 

by failure to object). 

After trial of the homestead claim, the trial court signed an “Interlocutory 

Judgment.” See Hall, 450 S.W.2d at 838 (“The order entered at the conclusion of a 

separate trial is often interlocutory, because no final and appealable judgment can 

properly be rendered until all of the controlling issues have been tried and 

decided.”). Because all the controlling issues in the case, i.e., the wrongfulexecution claim for damages, had not been tried and decided, the trial court did not 

err in not issuing a final judgment in the case. See id. 

Subsequently, however, the trial court signed an order purporting to sever 

the Noriegas’ homestead claim “to make it final and appealable.” Lousteau and 

Clanton assert that the trial court erred in severing the case “after” it “ha[d] gone to 

a jury.” 

Generally, a trial court has broad discretion in the severance of cases, and its 

decision will not be disturbed absent an abuse of discretion. Guar. Fed. Sav. Bank 

v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990); In re Henry, 388 

S.W.3d 719, 726 (Tex. App.—Houston [1st Dist.] 2012, orig. proceeding). The 

“controlling reasons for a severance are to do justice, avoid prejudice, and further 

convenience.” Guar. Fed. Sav. Bank, 793 S.W.2d at 658. A trial court properly 

exercises its discretion in severing claims if (1) the controversy involves more than 
12

one cause of action; (2) the severed claim is one that could be asserted 

independently in a separate lawsuit; and (3) the severed claim is not so interwoven 

with the remaining action that they involve the same facts and issues. In re Henry, 

388 S.W.3d at 726. “Severance of a single cause of action into two parts is never 

proper and should not be granted for the purpose of enabling the litigants to obtain 

an early appellate ruling on the trial court’s determination of one phase of the 

case.” Pierce v. Reynolds, 329 S.W.2d 76, 78, 79 n.1 (Tex. 1959). When a trial 

court severs a lawsuit, two or more independent suits result, and each leads to its 

own final, appealable judgment. In re Henry, 388 S.W.3d at 725.

A trial court is authorized to sever claims on its own motion, so long as the 

severance is proper under the rules of civil procedure. Aviation Composite Techs., 

Inc. v. CLB Corp., 131 S.W.3d 181, 187 (Tex. App.—Fort Worth 2004, no pet.) 

(citing Rice v. Travelers Exp. Co., 407 S.W.2d 534, 536 (Tex. Civ. App.—Houston 

1966, no writ)). Texas Rule of Civil Procedure 41 provides:

Misjoinder of parties is not ground for dismissal of an action. Parties 

may be dropped or added, or suits filed separately may be 

consolidated, or actions which have been improperly joined may be 

severed and each ground of recovery improperly joined may be 

docketed as a separate suit between the same parties, by order of the 

court on motion of any party or on its own initiative at any stage of 

the action, before the time of submission to the jury or to the court if 

trial is without a jury, on such terms as are just. Any claim against a 

party may be severed and proceeded with separately.

TEX. R. CIV. P. 41. 
13

“A literal interpretation of [r]ule 41 implies that only complaints about 

improper joinder must be made prior to the time of submission to the jury.” Arlitt 

v. Weston, No. 04-98-00035-CV, 1999 WL 1097101, at *4 (Tex. App.—San 

Antonio Dec. 1, 1999, pet. denied) (not designated for publication). And, 

“[o]therwise, the general rule that [a]ny claim against a party may be severed and 

proceeded with separately applies, and the motion may be made at any time.” Id.

(internal quotations omitted). However, the Texas Supreme Court has interpreted 

rule 41 to mean that “all ‘[p]arties and actions may be severed at any stage of the 

action, before the time of submission to the jury.’” Id. (emphasis added) (quoting 

State Dep’t of Highways and Pub. Trans. v. Cotner, 845 S.W.2d 818, 819 (Tex. 

1993)); see TEX. R. CIV. P. 41. Thus, rule 41 does not “permit a trial court to sever 

a case after it has been submitted to the trier of fact.” Cotner, 845 S.W.2d at 819

(emphasis added). A trial court abuses its discretion in ordering a severance after a 

jury verdict, “regardless of the [three]-pronged test [for] severability.” Arlitt, 1999 

WL 1097101, at *4.

Here, the trial court erred in severing the case after the Noriegas’ declaratory 

action on the homestead claim was tried to the jury. See id. This Court has held 

that a post-submission severance constitutes trial court error and does not deprive 

an appellate court of jurisdiction to consider the appeal. City of Houston v. Am. 

Res., Inc., No. 01-99-01377-CV, 2002 WL 31941517, at *1 (Tex. App.—Houston 
14

[1st Dist.] Dec. 27, 2002, no pet.) (not designated for publication) (“A trial court’s 

action that is contrary to a procedural rule does not divest a court of appeals of 

jurisdiction, but may be corrected through the ordinary appellate process or other 

direct proceedings.”); see also Pierce, 329 S.W.2d at 78 (“No matter how 

erroneous its conclusion and action may have been, it was within the judicial 

power of the court to determine that the cause was severable and to sever the same 

accordingly.”); Bird v. Lubricants, USA, LP, No. 2-06-061-CV, 2007 WL 

2460352, at *3 (Tex. App.—Fort Worth Aug. 31, 2007, pet. denied) (mem. op.)

(denying motion to dismiss for lack of jurisdiction based on improper severance); 

Nicor Expl. Co. v. Fla. Gas Transmission Co., 911 S.W.2d 479, 482–83 (Tex. 

App.—Corpus Christi 1995, writ denied) (declining to dismiss for lack of 

jurisdiction notwithstanding improper severance); Rutherford v. Whataburger, Inc., 

601 S.W.2d 441, 443 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) (judgment in 

severed portion of case final for purposes of appellate jurisdiction regardless 

whether severance proper). 

In City of Houston, the city argued that the trial court’s severance entered 

after the case had been submitted to a jury was “void,” and its “final” judgment 

was interlocutory and unappealable. 2002 WL 31941517, at *1. We held that 

“[o]nly a trial court judgment rendered without ‘jurisdictional power’ is void.” Id. 

(quoting Mapco, Inc. v. Forrest, 795 S.W.2d 700, 702 (Tex. 1990)). We explained 
15

that “[a] trial court’s action that is contrary to a procedural rule does not divest a 

court of appeals of jurisdiction.”8 Id. Rather, “an erroneous order of severance 

may be set aside on appeal.” Id. And “a judgment that possesses all the attributes 

of finality cannot be regarded as interlocutory merely because the trial court may 

have erred in ordering a severance.” Id. 

Here, the trial court fully adjudicated the Noriegas’ declaratory action. 

However, it issued its severance order in contravention of a procedural rule. See 

id.; see also TEX. R. CIV. P. 41. Accordingly, we hold that the trial court erred in 

severing the case.

We overrule Lousteau and Clanton’s fifth issue and sustain their seventh 

issue. 

Having concluded that the trial court erred in entering its severance order, 

we further conclude that the underlying judgment is interlocutory and, thus, we 

 

8 Courts have held that “[t]here is a distinction between those severances that are 

facially invalid and those that are merely improper.” Nicor Expl. Co. v. Fl. Gas 

Transmission Co., 911 S.W.2d 479, 483 (Tex. App.—Corpus Christi 1995, writ 

denied); see also A-Affordable Ins. Agency, Inc. v. AEA Ins. Agency Inc., No. 14-

09-00879-CV, 2010 WL 2103967, at *1–2 (Tex. App.—Houston [14th Dist.] May 

27, 2010, no writ) (mem. op.) (dismissing appeal of severance order where trial 

court “severed a definition, not a judgment” and did not “dispose of any claims, 

causes of action, or parties, and [did] not deny or grant any relief”); Forlano v. 

Joyner, 906 S.W.2d 118, 120 (Tex. App.—Houston [1st Dist.] 1995, no writ) 

(attempted severance of transfer order invalid and not appealable); H.E. Butt 

Grocery Co. v. Currier, 885 S.W.2d 175, 177 (Tex. App.—Corpus Christi 1994, 

no writ) (attempted severance of preliminary discovery order invalid and not 

appealable).
16

lack jurisdiction to reach Lousteau and Clanton’s first, second, third, and fourth 

issues, in which they argue, in regard to the Noriegas’ homestead issue, that the 

trial court erred in submitting question one to the jury because “it was not 

supported by the pleadings and, thus, was not a controlling question”; disregarding 

the jury’s negative finding in answer to question two because the jury’s finding 

was “material” and the trial court had “no authority to substitute its finding for that 

of a jury”; and concluding that their abandonment defense was not tried by 

consent. See In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 649 (Tex. 

App.—El Paso 1999, orig. proceeding) (concluding “no jurisdiction to address the 

remaining points of error since the discovery order would become interlocutory 

upon rejoining the original suit”); Tilger v. Samson Homes, Inc., No. 14-97-0361-

CV, 1999 WL 160995, at *2 (Tex. App.—Houston [14th Dist.] Mar. 25, 1999, pet. 

denied) (not designated for publication) (“Having determined severance in the 

court below was improper, we do not reach the remaining issues.”); Nicor Expl. 

Co., 911 S.W.2d at 483 (declining to reach remaining issues after determining that 

severance was improper); see also In re B.T.G., No. 05-13-00305-CV, 2016 WL 

1367073, at *4 (Tex. App. Apr.—Dallas Apr. 6, 2016, no pet.) (“Because the 

severance was improper, we conclude the divorce decree is interlocutory and 

issues other than the severance are not properly before us.”).
17

Further, we do not reach Lousteau and Clanton’s sixth issue, in which they 

argue that the trial court erred in “awarding damages” to the Noriegas because “the 

jury verdict did not award damages.” They assert that the “damages awarded 

(setting aside the sale, handing over the deed, foregoing rental payments on the 

property) were all sought by [the Noriegas] in relation to the bill of review action 

or the wrongful writ of execution, both of which were not a part of the trial in this 

case.” Because, as Lousteau and Clanton note, the trial court set aside the writ of 

execution and the constable’s sale and deed “in relation to the bill-of-review 

action,” which, as discussed above, remains in the main suit (trial court cause 

number 2013-35448), such actions are not before us in this appeal. See Lousteau, 

2015 WL 6081385, at *2–3.
18

Conclusion

We reverse the trial court’s severance order and remand the case to the trial 

court for further proceedings.9 We dismiss all pending motions as moot.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Massengale, and Huddle. 

 

9 See Owens v. Owens, 228 S.W.3d 721, 727 (Tex. App.—Houston [14th Dist.] 

2006, pet. dism’d) (reversing trial court’s severance order and remanding for 

further proceedings); Nicor Expl. Co., 911 S.W.2d at 483; see also TEX. R. APP. P.

43.2.