      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00534-CV



                                       Dan Levin, Appellant

                                                  v.

   Eduardo S. Espinosa, in his Capacity as Receiver of Retirement Value, LLC, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
       NO. D-1-GN-14-001587, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                             MEMORANDUM OPINION


               On December 10, 2013, the trial court signed an order granting appellee Eduardo S.

Espinosa’s motion for partial summary judgment against appellant Dan Levin and others in trial

court cause number D-1-GV-10-000454. On May 28, 2014, the court signed (1) an order severing

Espinosa’s claims against Levin into new cause number D-1-GN-14-001587 and (2) a final judgment

against Levin in the severed cause number. Thirty days later, on June 27, Levin electronically filed

a motion for new trial in the original cause number. On July 1, the trial court clerk’s office rejected

the motion because it was not filed in the correct cause number, and that same date, Levin filed a

new motion for new trial under the new cause number. On August 26, Levin filed a notice of appeal,

relying on the June 27 motion for new trial to extend the time to file the notice of appeal from thirty

to ninety days. See Tex. R. App. P. 26.1(a). Espinosa has filed a motion to dismiss the appeal,

arguing that the misfiled motion for new trial did not extend Levin’s appellate deadlines. The only
question to be answered is whether the June 27 motion for new trial, filed in the wrong cause

number, acted to extend the time to file a notice of appeal in the new, severed cause. We hold that

it did not and dismiss the appeal for want of jurisdiction.

               A notice of appeal must be filed within thirty days of the trial court’s judgment unless

a party timely files a motion for new trial, in which case the deadline is extended to ninety days.1

Id. If a notice of appeal is not timely filed, we may not exercise jurisdiction over the attempted

appeal. See Texas Emp’rs Ins. Ass’n v. Martin, 347 S.W.2d 916, 917 (Tex. 1961) (because appeal

was not perfected within thirty days of judgment, court of appeals “did not acquire jurisdiction”);

Plaza Motors, Inc. v. Bergstrom, No. 03-08-00295-CV, slip op. at 2 (Tex. App.—Austin Aug. 7,

2008, no pet.) (mem. op.) (because notice of appeal was late, court was “without jurisdiction to

consider the appeal”).

               In Philbrook v. Berry, the supreme court was presented with facts similar to those in

this case: Philbrook sued several parties and, when one defendant failed to file a timely answer,

obtained a severance of his claims against that defendant and a default judgment in the severed

cause. 683 S.W.2d 378, 379 (Tex. 1985). The defendant filed a motion for new trial in the original

cause number, which the trial court granted, and the supreme court held that the trial court lost

plenary power to grant the motion for new trial because the motion was filed in the wrong cause

number. Id. In making this decision, the court said that to extend a trial court’s plenary power, “[i]n




       1
         Rule 26.3 provides for a fifteen-day extension of time provided that the appellant files a
motion for extension of time complying with rule 10.5(b), see Tex. R. App. P. 26.3; see also Tex.
R. App. P. 10.5(b), and a civil appeal filed within that fifteen-day window carries with it an implied
motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

                                                  2
addition to being filed timely, the motion for new trial must be filed in the same cause as the

judgment the motion assails.” Id.

                Despite that explicit statement of the law and the clarity of the appellate rules

governing when and how an appeal must be perfected, several decisions issued between 1992

and 1994 have muddied the waters in this area, starting with Mueller v. Saravia, 826 S.W.2d 608

(Tex. 1992). In that case, the trial court rendered a take-nothing judgment against Mueller and then

severed her claims against Saravia into a new cause number. Id. at 609. Mueller filed a timely

motion for new trial in the original cause number seeking new trial in both causes and successfully

sought re-consolidation of the causes. Id. The supreme court held that, despite being filed in the

original cause number, the motion for new trial extended Mueller’s appellate deadline in the severed

cause because Philbrook required only that the motion for new trial be filed in the same cause as the

judgment being assailed. Id. The court also noted that the severed cause number was nowhere to

be found in the clerk’s record and that the parties and the trial court had proceeded as if the severance

had not happened, concluding that Mueller should not be punished for failing to comply with a

severance order ignored by both parties and the trial court. Id.

                In City of San Antonio v. Rodriguez, the supreme court held that a timely notice of

appeal filed under an erroneous cause number was sufficient to invoke appellate jurisdiction.

828 S.W.2d 417, 418 (Tex. 1992). In that case, the style of the case did not match the style of the

incorrect cause number, and the court distinguished the facts from Philbrook, in which the styles

associated with both cause numbers were identical. Id. The court stated that there was no confusion

as to what the City intended to appeal and that the notice of appeal was a “‘bona fide attempt to

invoke appellate court jurisdiction’” because it complied with the appellate rules in all respects

                                                   3
other than the erroneous cause number. Id. (quoting Grand Prairie Indep. Sch. Dist. v. Southern

Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991)).

               In McRoberts v. Ryals, the trial court signed a judgment that included a severance

order, but the trial court clerk did not assign a new cause number to the severed action until two

months later, and in the meantime, McRoberts filed a motion for new trial in the original cause

number. 863 S.W.2d 450, 451 (Tex. 1993). About two weeks after the new number was assigned,

McRoberts perfected his appeal under the original cause number. Id. The supreme court observed

that because McRoberts could not be expected to file his motion for new trial under a nonexistent

cause number, his motion operated to extend his time to appeal. Id. at 454-55. It further held that

McRoberts’s attempt to appeal, filed in the original cause, was proper because the judgment he

sought to appeal was under the original cause number, noting that notice of the new cause number

was not provided to the parties when it was finally assigned. Id.

               Finally, in Blankenship v. Robins, the trial court rendered summary judgment against

Blankenship and ordered that all remaining claims should be severed into a new cause number.

878 S.W.2d 138, 138 (Tex. 1994). However, the trial court clerk instead assigned a new cause

number to the summary judgment, leaving the remaining claims in the original cause. Id. The trial

court and parties then proceeded in accordance with the clerk’s actions, with Blankenship filing a

timely motion for new trial and appeal bond in the severed cause. Id. The supreme court held that

Blankenship should not be punished for not complying with a severance order that was also ignored

by Robins and the trial court and that Blankenship’s filings in conformity with the clerk’s actions

were a bona fide attempt to invoke appellate jurisdiction. Id. at 139.



                                                 4
                Although some of those four cases include language along the lines of “[a]ssuming

that Philbrook was correctly decided,” the supreme court has not expressly invalidated the law as

set out in Philbrook. Instead, it has distinguished Philbrook, leaving it as valid law at the same time

as casting doubt as to its viability. This has led to confusion in the courts of appeals. See, e.g., Leal

v. City of Rosenberg, 17 S.W.3d 385, 386 (Tex. App.—Amarillo 2000, order) (holding that timely

motion for new trial filed under original cause number extended time to file notice of appeal in

severed cause and stating, “While Philbrook does support the City’s contention [that the motion did

not extend appellate deadline], the Texas Supreme Court has all but expressly overruled the decision.”

(citing Blankenship, 878 S.W.2d at 138-39; Rodriguez, 828 S.W.2d at 418; Mueller, 826 S.W.2d

at 609)); Garza v. CMH Homes, Inc., No. 04-01-00845-CV, 2002 WL 31465810, at *2 & n.1 (Tex.

App.—San Antonio Nov. 6, 2002, no pet.) (not designated for publication) (relying on Philbrook for

proposition that motion for new trial filed in original cause number does not extend trial court’s

plenary power in severed cause).

                This issue has been further confused by language that seems to equate a motion for

new trial with a notice of appeal, stating that a motion for new trial can be considered a “bona fide

attempt to invoke appellate jurisdiction.” See Mueller, 826 S.W.2d at 609 (“Mueller’s motion for

new trial, filed under the original cause number rather than the severed cause number, is sufficient

to invoke appellate jurisdiction”); Jones v. Tummel, No. 13-13-00668-CV, 2014 WL 2937011, at *2

(Tex. App.—Corpus Christi June 26, 2014, no pet.) (mem. op.) (“the motions for new trial [filed

under original cause number] were bona fide attempts to invoke appellate jurisdiction”); Leal,

17 S.W.3d at 386 (“courts now hold that filing a timely motion for new trial under the wrong cause



                                                   5
number or in the wrong case evinces a bona fide attempt to invoke appellate jurisdiction”); Matlock

v. McCormick, 948 S.W.2d 308, 310 (Tex. App.—San Antonio 1997, no writ) (considering whether

“motion for new trial failed to invoke appellate court’s jurisdiction” and holding that motion filed

in original cause extended appellate deadline). However, the supreme court has clarified that a

motion for new trial “is not an instrument that may be considered a bona fide attempt to invoke the

appellate court’s jurisdiction.” In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005); see also In re J.M.,

396 S.W.3d 528, 530-31(Tex. 2013) (motion for new trial that does not address appellate court

does not qualify as a substitute for a notice of appeal, but combined motion for new trial and notice

of appeal may).

                Although we are to construe the rules liberally to preserve the right to appeal, see

Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997), we must also impose them reasonably

and with consistency. The rules clearly state the deadlines for filing a notice of appeal, see Tex. R.

App. P. 26.1, and the supreme court has explicitly stated that a motion for new trial is not a bona fide

attempt to invoke appellate jurisdiction, see K.A.F., 160 S.W.3d at 928. Furthermore, this is not

a case in which the parties and trial court proceeded as if the severance had not happened. See

Blankenship, 878 S.W.2d at 138; McRoberts, 863 S.W.2d at 451; Mueller, 826 S.W.2d at 609.

Instead, very shortly after Levin filed his first motion for new trial, the trial court clerk’s office

notified him that it had been misfiled, and he responded by refiling it under the correct, severed cause

number. At that time, Levin was still within the fifteen day window for obtaining an extension of

time to file his notice of appeal. See Tex. R. App. P. 26.3. However, rather than filing his notice

of appeal at that time, he waited until the ninetieth day to attempt to perfect his appeal.



                                                   6
              We hold that the misfiled motion for new trial, which did not operate to extend the

trial court’s plenary power over the severed cause number, see Garza, 2002 WL 31465810, at *2 &

n.1, likewise did not extend the deadline for filing an appeal from the judgment entered in the

severed cause. We therefore dismiss the appeal for want of jurisdiction.



                                            __________________________________________

                                            David Puryear, Justice

Before Justices Puryear, Pemberton, and Field
 Justice Field joining majority and concurring with opinion
 Justice Pemberton joining majority and concurrence

Dismissed for Want of Jurisdiction

Filed: February 13, 2015




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