James Lee, D/B/A Free Check Cashing v. One World Bank

• Court: Court of Appeals of Texas
• Decided: August 15, 2016
• Docket: 05-16-00688-CV
• Status: Published

Opinion

DISMISS and Opinion Filed August 15, 2016

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00688-CV

JAMES LEE D/B/A FREE CHECK CASHING, Appellant V. ONE WORLD BANK, Appellee

On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-03608

MEMORANDUM OPINION Before Chief Justice Wright and Justices Lang-Miers and Stoddart Opinion by Chief Justice Wright Before the Court is the motion of appellant James Lee d/b/a Free Check Cashing for an

extension of time to file a notice of appeal. Lee appeals from an interlocutory summary

judgment rendered final by a severance order.

Lee filed a lawsuit alleging claims against Marvin Poer and Company, BBVA Compass

Bank, One World Bank, and Carlito Tartt. Appellee One World Bank filed a motion for partial

summary judgment requesting a take nothing judgment on Lee’s claims against it, an award of

damages pursuant to its counterclaims, and a severance. On January 24, 2016, the trial court

signed two orders. In one order, the trial court granted the motion for partial summary judgment

and, in the other order, the trial court granted a severance. On March 3, 2016, on One World

Bank’s motion, the trial court found the severance order contained a clerical error and signed an order correcting the error. The trial court clerk assigned a new cause number to the severed

cause on March 28, 2016.

In his motion, Lee first argues that, if March 28th, the date a new cause number was

assigned to the severed cause, is the operative date, his notice of appeal filed on June 13, 2016 is

timely as it was filed within ninety days of March 28th. On the other hand, Lee contends that, if

March 3rd, the date the trial court signed the order correcting the clerical error in the severance

order is the operative date, his notice of appeal was filed within fifteen days of the deadline and

he seeks an extension.

There are two problems with Lee’s contentions. First, neither of his suggested dates is

correct. An order granting a severance is effective when signed, regardless of whether the

district clerk creates a separate physical file with a different cause number. See McRoberts v.

Ryals, 863 S.W.2d 450, 452–53 (Tex. 1993); Espalin v. Children's Med. Ctr. of Dallas, 27

S.W.3d 675, 680 (Tex. App.—Dallas 2000, no pet.). An exception exists if the severance order

expressly contemplates some future action needed before the severed judgment will be final. See

Diversified Financial Systems, Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d

795 (Tex. 2001) (per curiam). The severance order in this case did not expressly contemplate

any future action before the interlocutory summary judgment would become final. Thus, the

operative date triggering the appellate deadlines was January 24, 2016, the date the severance

order was signed. Moreover, because the trial court’s March 3, 2016 order corrected a clerical

error, it had no impact on the date from which appellate timetables began running. See Daniels

v. Comm’n for Lawyer Discipline, 142 S.W .3d 565, 573 (Tex. App.—Texarkana 2006, no pet.)

(nunc pro tunc judgment relates back to date of original judgment and is effective as of earlier

date).

–2– The second problem with Lee’s contentions is that he mistakenly assumes he had ninety

days from the operative date to file a notice of appeal. Without a timely filed post-judgment

motion extending the appellate deadlines, a notice of appeal is due thirty days after the date the

judgment is signed or forty-five days with a timely motion for extension of time. See TEX. R.

APP. P. 26.1, 26.3. Lee does not state in his motion the basis for his contention that he had ninety

days to file a notice of appeal. The only post-judgment motion in the record is the motion for

rehearing filed by Lee on March 2, 2016 seeking to modify the summary judgment. This

motion, however, was not timely as it was filed more than thirty days after the date the severance

order was signed. See TEX. R. CIV. P. 329b(a).

Because the severance order signed on January 24, 2016 rendered the interlocutory

summary judgment final and no party filed a timely post-judgment motion extending the

appellate deadlines, the notice of appeal was due on February 23, 2016 or March 9, 2016 with a

timely filed extension motion. See TEX. R. APP. P. 26.1, 26.3. The notice of appeal filed on June

13, 2016 is untimely. Absent a timely notice of appeal, this Court lacks jurisdiction. See TEX. R.

APP. P. 25.1(b). Accordingly, we deny Lee’s motion and dismiss the appeal for want of

jurisdiction. See TEX. R. APP. P. 42.3(a).

/Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

160688F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES LEE D/B/A FREE CHECK On Appeal from the 44th Judicial District CASHING, Appellant Court, Dallas County, Texas Trial Court Cause No. DC-16-03608. No. 05-16-00688-CV V. Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart ONE WORLD BANK, Appellee participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee ONE WORLD BANK recover its costs of this appeal from appellant JAMES LEE D/B/A FREE CHECK CASHING.

Judgment entered August 15, 2016.

–4–