                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 CHRISTOPHER CASTRO,                                            No. 08-15-00077-CV
                                                 §
                        Appellant,                                   Appeal from
                                                 §
 v.                                                          County Court at Law No. 3
                                                 §
 THE INLAND SEA, INC.,                                        of El Paso County, Texas
                                                 §
                        Appellee.                               (TC # 2014DCV3830)
                                                 §

                                 MEMORANDUM OPINION

       This appeal is before the Court on its own motion to determine whether it should be

dismissed for want of jurisdiction. The question before us is whether the summary judgment

became final and appealable on the date the trial court signed the severance order or on the date

that the trial court clerk actually created the severed case file. Finding that the severance order

was not conditioned on the occurrence of future events, we dismiss the appeal for want of

jurisdiction because Appellant, Christopher Castro, did not timely file his notice of appeal.

       A civil appeal is perfected when the notice of appeal is timely filed. TEX.R.APP.P. 25.1,

26.1; see Restrepo v. First National Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238

(Tex.App.--El Paso 1995, no writ). If the notice of appeal is untimely, the appellate court lacks

jurisdiction and must dismiss the case.      See Charette v. Fitzgerald, 213 S.W.3d 505, 509

(Tex.App.--Houston [14th Dist.] 2006, no pet.). In an ordinary civil case, the notice of appeal
must be filed within 30 days after the judgment or appealable order is signed or within 90 days if

any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate

under TEX.R.CIV.P. 165a, or makes a request for findings of fact and conclusions of law.

Tex.R.App.P. 26.1(a). The appellate court may extend the time to file the notice of appeal if,

within fifteen days after the deadline passes, the appellant files (1) the notice of appeal in the trial

court and (2) a motion for extension of time complying with Rule 10.5(b). TEX.R.APP.P. 26.3;

see TEX.R.APP.P. 10.5(b); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

        Castro filed suit against Appellee, The Inland Sea, Inc., and two other defendants,

Rigoberto Duran and Movers Service Agency, Inc. in cause number 2009-5287, styled

Christopher Castro v. The Inland Sea, Inc., Rigoberto Duran, and Movers Service Agency, Inc.

The trial court granted Inland Sea’s motion for summary judgment on April 2, 2014, but it was

not a final judgment because it did not dispose of Castro’s claims against the other defendants.

See Lehmann v. Har-Con Corporation, 39 S.W.3d 191, 195 (Tex. 2001). On November 6, 2014,

the trial court entered an order granting Castro’s motion to sever his claims against Inland Sea.

The order provided, in pertinent part, that:

        After considering Defendant’s Motion for Severance, the response, the pleadings
        and argument of counsel, the Court GRANTS the motion to sever, severs Plaintiff
        CHRISTOPHER CASTRO’S claims against THE INLAND SEA, INC., and
        orders the Clerk of the Court to assign the severed action the separate cause
        number of 2009-5287-B, copy the following documents, and include them in that
        file . . . .

For reasons not reflected in the record before us, the trial court clerk did not create the new case

until December 3, 2014 and the clerk assigned cause number 2014DCV3830 to the severed case.

Castro timely filed a motion for new trial on December 4, 2014. Thus, his notice of appeal was

due to be filed on February 4, 2015. Castro did not file notice of appeal until February 27, 2015,

more than fifteen days after the due date.

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       The Clerk of the Court sent Castro notice of the Court’s intent to dismiss for want of

jurisdiction. Castro filed a response asserting that the appellate timetable did not begin running

on November 6, 2014 when the trial court signed the severance order because the severance is

conditioned on the trial court clerk’s creation of the new case number and the filing of the

designated documents into that new case. The severance of an interlocutory judgment into a

separate cause generally makes it final and appealable. Doe v. Pilgrim Rest Baptist Church, 218

S.W.3d 81 (Tex. 2007). Typically, a severance order is effective when it is signed, regardless of

whether the district clerk creates a separate physical file with a different cause number.

McRoberts v. Ryals, 863 S.W.2d 450, 452-53 (Tex. 1993). An exception occurs, however, where

the severance order conditions the effectiveness of the severance on a future event, such as the

payment of fees associated with the severance by the party requesting it. Pilgrim Rest Baptist

Church, 218 S.W.3d at 82; McRoberts, 863 S.W.2d at 453 n.3. In such a case, the severance

order would not be effective until the condition is satisfied and the appellate timetable would not

begin to run on the date the order is signed.

       In Pilgrim Rest Baptist Church, the severance order provided that the claims were

severed “upon compliance with the District Clerk’s procedure” and the parties agreed that the

clerk’s procedure required payment of a filing fee. Pilgrim Rest Baptist Church, 218 S.W.3d at

82. The Supreme Court concluded that the severance order made the severance conditional upon

the payment of the filing fee. Id. Consequently, the severance order did not become effective

until the filing fee had been paid. Id.

       In our case, the order severs Castro’s claims against Inland Sea, and orders the clerk to

assign it cause number 2009-5287-B and to copy certain documents and include them in the file.



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In contrast with the severance order in Pilgrim Rest, the trial court’s order does not include any

language making the severance order conditional on the occurrence of any other actions or

events. We conclude that the severance order was effective on the date it was signed.

        Castro also argues that the summary judgment is not final and appealable because it does

not state that it disposes of all of his claims against Inland Sea. This argument is contradicted by

his motion for new trial which stated that the April 2, 2014 order granting summary judgment in

favor of Inland Sea was “made final and appealable by way of the order of severance signed

November 6, 2014 . . . .” Further, his notice of appeal stated that the summary judgment became

final and appealable “when the severed action was created on December 3, 2014.” Castro

acknowledges the rule that an order or judgment is not final for purposes of appeal unless it

actually disposes of every pending claim and party, but he does not identify any claim against

Inland Sea which remains pending.

        We conclude that the appellate timetable began running on November 6, 2014 when the

trial court signed the severance order and the notice of appeal was due to be filed on February 4,

2015. Because Castro did not file his notice of appeal until February 27, 2015, more than fifteen

days after the due date, he failed to perfect his appeal. The appeal is hereby dismissed for lack of

jurisdiction.


May 15, 2015
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating




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