Mosaic Baybrook One, L.P., Mosaic Baybrook Two, L.P., and Mosaic Residential, Inc. v. Paul Simien, for Himself and All Others Similarly Situated

• Court: Court of Appeals of Texas
• Decided: April 24, 2025
• Docket: 01-24-00540-CV
• Status: Published

Opinion

Opinion issued April 24, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00540-CV ——————————— MOSAIC BAYBROOK ONE, L.P., MOSAIC BAYBROOK TWO, L.P., AND MOSAIC RESIDENTIAL, INC., Appellants V. PAUL SIMIEN, FOR HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Appellees

On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2017-08379

MEMORANDUM OPINION

Appellants filed two related interlocutory appeals arising from the same

alleged denial of appellants’ motion to dismiss under the Texas Citizens

Participation Act. Appellants filed this appeal (Case No. 01-24-00540-CV) in the original trial court cause number; they filed the related appeal (pending in our Court

under Case No. 01-24-00605-CV) in a separate, severed case.

Appellees filed a motion to dismiss this appeal for lack of jurisdiction,

asserting that there is no denial to appeal in the original case because any alleged

denial of the TCPA motion occurred in the severed case. We agree. We grant the

motion and dismiss the appeal.

Background

The underlying case—trial court cause no. 2017-08379 (the “Main Case”)—

is a class action suit filed against appellants. See Mosaic Baybrook One, L.P. v.

Simien, 674 S.W.3d 234 (Tex. 2023). Appellees filed a motion to show cause,

alleging refusal to comply with orders related to class notice. Appellants responded

with a TCPA motion to dismiss the show-cause motion. To avoid interference with

the Main Case, the trial court severed the show-cause proceeding into a new case

with a new 2017-08379-A cause number (the “Severed Case”).

On July 18, 2024, after the trial court severed the case, appellants filed a notice

of appeal in the Main Case alleging that the TCPA motion had been denied by

operation of law on July 17, 2024. The notice of appeal filed in the Main Case

commenced this appeal. On July 23, 2024, appellants filed a notice of appeal in the

Severed Case challenging the same alleged denial of the TCPA motion by operation

2 of law. The notice of appeal filed in the Severed Case commenced the appeal

pending under Case No. 01-24-00605-CV.

Discussion

Because appellants have filed two pending appeals regarding the same alleged

denial of their TCPA motion to dismiss, we must determine which appeal is properly

before our Court. Appellees filed a motion to dismiss this appeal, asserting that there

is no appealable order in the Main Case because the alleged denial of the TCPA

motion is in the Severed Case, not this one. We agree.

“A severance splits a single suit into two or more independent actions . . . .”

Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985);

see also Kennard Law, P.C. v. Patton, No. 01-20-00560-CV, 2022 WL 479910, at

*2 (Tex. App.—Houston [1st Dist.] Feb. 17, 2022, no pet.) (“[W]hen a suit is

severed, two or more independent lawsuits result, each with their own final

appealable judgments.”). The “severed action becomes a different action.” In re E.I.

du Pont de Nemours & Co., 92 S.W.3d 517, 523 (Tex. 2002).

Here, the the trial court severed the subject matter of the TCPA motion to

dismiss—along with the TCPA motion itself—into the separate Severed Case on

July 16, 2024. To the extent the TCPA motion was denied by operation of law on

July 17, 2024, the denial occurred in the Severed Case. After the severance, the

TCPA motion “was no longer in the original trial court cause number,” but “instead

3 moved to the severed trial court cause number.” Chord Energy Corp. v. Absolute Oil

+ Gas, LLC, No. 01-24-00117-CV, 2024 WL 3503081, at * 1 (Tex. App.—Houston

[1st Dist.] July 23, 2024, no pet.); see Motor Coach Indus., Inc. v. Hinton, No. 10-

05-00286-CV, 2005 WL 2234044, at *1 (Tex. App.—Waco Sept. 14, 2005, pet.

denied) (“After the severance, the order granting the special appearance [was] no

longer in the original cause.”). The purported denial of the TCPA motion is the only

order appellants challenge here on appeal.

Because appellants do not appeal an order “remaining in the original trial court

cause number,” our Court “lack[s] jurisdiction over an appeal from the original trial

court cause number.” Chord Energy Corp., 2024 WL 3503081, at *1-2.

In response to the motion to dismiss, appellants argue that the trial court’s

severance of the case was improper. This response, however, fails to demonstrate a

basis for jurisdiction in this appeal (as opposed to in the other pending appeal).

Rather than demonstrating that there is an appealable order in this case, appellants

challenge the trial court’s severance order itself. But Texas law does not authorize

an interlocutory appeal from a severance order. See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a) (listing types of interlocutory orders for which appeal is authorized).

Moreover, both our Court and the Texas Supreme Court have denied appellants’

mandamus petitions challenging the severance order. See In re Mosaic Baybrook

One, L.P., No. 01-24-00598-CV, 2024 WL 3835484, at *1 (Tex. App.—Houston

4 [1st Dist.] Aug. 15, 2024, orig. proceeding [mand. denied]). Finally, appellants’

argument disregards authority holding that that even if a severance order is

“erroneous,” that order still “effectively separates the controversy into two causes.”

Sealy Emergency Room, LLC v. Free Standing Emergency Room Managers of Am.,

LLC, 685 S.W.3d 816, 823 (Tex. 2024) (quoting Pierce v. Reynolds, 329 S.W.2d 76,

78 (Tex. 1959)).

We lack jurisdiction to consider the purported denial of appellants’ TCPA

motion by operation of law in this appeal because any denial occurred in a separate

trial court case for which a separate appeal is pending in our Court.

Conclusion

We grant appellees’ motion and dismiss this appeal for lack of jurisdiction.

Any other pending motion are dismissed as moot.

PER CURIAM

Panel consists of Justices Guerra, Caughey, and Morgan.