                                     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
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.
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