DISMISS and Opinion Filed October 24, 2018




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-18-00845-CV

                       AZS HOLDING COMPANY LLC, Appellant
                                      V.
                      MOHAMMAD-REZA KHOSH-SIRAT, Appellee

                      On Appeal from the 429th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 429-02224-2018

                             MEMORANDUM OPINION
                       Before Justices Stoddart, Whitehill, and Boatright
                                 Opinion by Justice Whitehill

       We questioned our jurisdiction over this appeal from the trial court’s default judgment

because it did not appear to have been timely filed. See Brashear v. Victoria Gardens of McKinney,

L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no pet.) (op. on reh’g) (timely filing of

notice of appeal jurisdictional). As reflected in the clerk’s record, the default judgment against

appellant was signed May 19, 2017. However, claims against other parties remained, and the

judgment did not become final and appealable until August 11, 2017, when the trial court severed

the claims against appellant from the remaining claims. See Farmer v. Ben E. Keith Co., 907

S.W.2d 495, 496 (Tex. 1995) (per curiam) (interlocutory judgment that does not dispose of all

parties or claims becomes final and appealable upon severance, dismissal, or nonsuit of

unadjudicated claims and parties). Because a motion for new trial was timely filed, the notice of
appeal was due within ninety days or November 9, 2017. See TEX. R. APP. P. 26.1(a). It was filed

July 23, 2018.

       At our request, the parties filed jurisdictional letter briefs addressing the timeliness of the

appeal. In its brief, appellant disputes the severance order rendered the default judgment final.

Appellant relies on the following portion of the order to support its position:

       [I]t is ORDERED that Plaintiff’s Motion [to Sever] is granted and Plaintiff’s default
       judgment against AZS Holding Company LLC (“AZS”) is severed from Cause No.
       429-05451-2016 (the “Existing Cause”) into a new cause in this court which will
       be docketed as Cause No. ________________ (the “New Cause”) and that all of
       the pleadings, motions, correspondence, orders, and other documents on file related
       to AZS, including the default judgment, in the Existing Cause be copied and
       incorporated in the New Cause[.]

Appellant asserts that the default judgment did not become final until the new cause number was

assigned and the associated filing fee paid. Appellant notes a cause number was assigned, and the

fee paid, May 7, 2018. Appellant further notes a motion for new trial was filed within thirty days

of the new cause number being assigned, making the notice of appeal filed within ninety days from

May 7th timely filed. In response, appellee asserts that because the severance was not conditioned

on any future event, the severance order rendered the default judgment final. We agree.

       As a rule, the severance of an interlocutory judgment into a separate cause makes it final,

but a court can condition the effectiveness of the severance on a future certain event. Doe v.

Pilgrim Rest Baptist Church, 218 S.W.3d 81, 82 (Tex. 2007) (per curiam). Whether the trial court

clerk ever creates a physically separate file or assigns a new cause number does not affect the

finality of an unconditional severed judgment. See McRoberts v. Ryals, 863 S.W.2d 450, 453 n.3,

4 (Tex. 1993).

       Here, the trial court’s order did not condition the severance on the creation of a separate

physical file or any other future event. Accordingly, the severance order rendered the default

judgment final and the notice of appeal, filed almost a year later, is untimely.



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      We dismiss the appeal. See TEX. R. APP. P. 42.3(a).



                                               /Bill Whitehill/
                                               BILL WHITEHILL
                                               JUSTICE

180845F.P05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 AZS HOLDING COMPANY LLC,                          On Appeal from the 429th Judicial District
 Appellant                                         Court, Collin County, Texas
                                                   Trial Court Cause No. 429-02224-2018.
 No. 05-18-00845-CV        V.                      Opinion delivered by Justice Whitehill.
                                                   Justices Stoddart and Boatright
 MOHAMMAD-REZA KHOSH-SIRAT,                        participating.
 Appellee

       In accordance with this Court’s opinion of this date, we DISMISS the appeal.

       We ORDER appellee Mohammad-Reza Khosh-Sirat recover his costs, if any, of this
appeal from appellant AZS Holding Company LLC.


Judgment entered October 24, 2018.




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