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
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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