NUMBER 

13-15-00106-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

V. BELAFONTE FRIAR, Appellant,

v.

CHRISTOPHER BLASCHKE, Appellee.

On appeal from the County Court

of De Witt County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Longoria 

Memorandum Opinion by Justice Garza 

Appellant V. Belafonte Friar appeals from a judgment in a forcible detainer action 

in favor of appellee, Christopher Blaschke, independent executor of the estate of Mary 

Anna Majefski Winkelmann, deceased. By a single issue, appellant contends the trial 

court erred in failing to abate the forcible detainer action because a suit involving the 
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same parties and issues was pending when the present action was filed. We affirm. 

I. BACKGROUND

On January 6, 2015, Blaschke filed a forcible detainer action in justice court of 

DeWitt County, Texas, to recover possession of certain real property (“the property”) from 

appellant. The justice court granted judgment in Blaschke’s favor. Appellant appealed 

the judgment to county court. Following a trial de novo in county court on February 23, 

2015, the county court also rendered judgment in favor of Blaschke. 

By his sole issue, appellant contends that the county court should have abated the 

present case because an ancillary proceeding involving the same parties and involving 

title to the property was pending at the time the present action was filed. Because 

appellant’s argument relies on events in the ancillary proceeding, we outline the relevant 

procedural events in that matter. 

In trial court cause number 11347A in county court in DeWitt County, Blaschke 

sued appellant to rescind a warranty deed allegedly fraudulently acquired by appellant 

and to return ownership of the property to Winkelmann’s estate. On October 28, 2014, 

the trial court signed a partial summary judgment rescinding the deed and returning the 

property to the estate. On November 20, 2014, the trial court severed the partial summary 

judgment into the separate cause number 11347B. Following a December 1, 2014 bench 

trial on the remaining issues for monetary damages, the trial court signed a final judgment 

in cause number 11347A on December 2, 2014. Appellant filed an untimely motion for 

new trial in cause number 11347A on January 12, 2015, and a notice of appeal on March 

4, 2015. 

On April 9, 2015, this Court dismissed the appeal for want of jurisdiction, finding 
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that the deadline for filing appellant’s motion for new trial was January 2, 2015,1 and that 

appellant’s motion for new trial was untimely because it was filed on January 12, 2015, 

and that the notice of appeal was therefore untimely as well. See Friar v. Blaschke, No. 

13-15-00108-CV, 2015 WL 1631785, at *1 (Tex. App.—Corpus Christi April 9, 2015, no 

pet.) (mem. op., per curiam). This Court’s mandate was issued September 21, 2015. 

II. STANDARD OF REVIEW AND APPLICABLE LAW

Appellant argued, in his motion to abate and on appeal, that the county court 

lacked jurisdiction to determine which party had the right to immediate possession 

because the previously-filed ancillary proceeding—which involved title to the property—

remained pending. Appellant argued that the county court erred in denying his motion to 

abate on grounds that the ancillary proceeding remained pending. We review a trial 

court’s ruling on a motion to abate for an abuse of discretion. See Dolenz v. Cont'l Nat'l 

Bank, 620 S.W.2d 572, 575 (Tex. 1981); Molano v. State, 262 S.W.3d 554, 558 (Tex.

App.—Corpus Christi 2008, no pet.). 

III. DISCUSSION

Appellant argues that the trial court erred in not abating the present suit because 

the ancillary proceeding “had not been finalized because it was on appeal from the 

judgment of the County Court.” We disagree. 

An interlocutory judgment becomes final when the trial court severs the 

interlocutory judgment from the unadjudicated claims. See TEX. R. CIV. P. 41; Harris Cty. 

Flood Control Dist. v. Adam, 66 S.W.3d 265, 266 (Tex. 2001) (holding that, when order 

of severance was signed, summary judgment for two defendants became final). Here, 

 

1 The thirtieth day after December 2, 2014, fell on January 1, 2015, which was New Year’s Day. 

The deadline for filing the motion for new trial was therefore extended to Friday, January 2, 2015. See TEX.

R. APP. P. 4.1(a). 
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the trial court severed the partial summary judgment—disposing of the issue of title to the 

property—on November 20, 2014, rendering that judgment final.2 The deadline for filing 

a motion for new trial in that judgment was thirty days after the date of the severance 

order. See TEX. R. CIV. P. 329b; see Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 

(Tex. 1995) (“When a judgment is interlocutory because unadjudicated parties or claims 

remain before the court, and when one moves to have such unadjudicated claims or 

parties removed by severance, dismissal, or nonsuit, the appellate timetable runs from 

the signing of a judgment or order disposing of those claims or parties.”). 

Even if we disregard the severance, the trial court rendered judgment on the 

remaining claims (in cause number 11347A) on December 2, 2014. As this Court noted 

in appellate cause number 13-15-00108-CV, the deadline for filing a motion for new trial 

was January 2, 2015. Appellant’s motion for new trial was untimely because it was filed 

on January 12, 2015. Appellant’s argument that the ancillary proceeding was not final 

because it was “on appeal” is without merit. See TEX. R. CIV. P. 329b(d). Thus, when the 

present case was filed on January 6, 2015, the ancillary proceeding was final and was no 

longer pending. Accordingly, the county court did not abuse its discretion in denying 

appellant’s motion to abate, and we overrule his sole issue. 

IV. CONCLUSION

We affirm the trial court’s judgment.

DORI CONTRERAS GARZA

Justice

Delivered and filed the

9th day of June, 2016.

 

2 We note that, at the bench trial of the present case, the parties stipulated to these dates.