                                                                                                                ACCEPTED
                                                                                                            04-15-00466-CV
                                                                                                FOURTH COURT OF APPEALS
                                                                                                     SAN ANTONIO, TEXAS
                                                                                                       9/17/2015 1:51:09 PM
                                                                                                             KEITH HOTTLE
                                                                                                                     CLERK



                             No. 04-15-00466-CV
                                                                                      FILED IN
                                                                               4th COURT OF APPEALS
                                                                                SAN ANTONIO, TEXAS
Felix Luera, Jr. and
                                                                               9/17/2015 1:51:09 PM
Bianca Luera                                                                     KEITH E. HOTTLE
                                                                                       Clerk
                                                          In the Court of
V.
                                                       Appeals for the Fourth
                                                         District of Texas
Basic Energy
Services, Inc. and
Basic Energy
Services, L.P.

A PPELLEES ’ R EPLY IN S UPPORT OF T HEIR M OTION TO
                       D ISMISS

T O THE H ONORABLE C OURT 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 N OVEMBER 20, 2014 1

          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.
           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                              2
           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                             3
           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                               4
           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                              5
           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 C OURT ’ 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                              6
           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 negligent2 as 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                                              7
           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 days3 after 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                                            8
                   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.4 It
           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                                                  9
           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                              10
           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                              11
           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                                                12
                  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                                 13
           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




REPLY IN SUPPORT OF APPELLEES’ MOTION   TO DISMISS   14
