UNCONDITIONAL SEVERANCE ORDER STARTS THE APPELLATE CLOCK, EVEN BEFORE THE NEWLY SEVERED CASE IS DOCKETED

AZS Holding Company LLC v. Khosh-Sirat
Dallas Court of Appeals, No. 05- 18-00845-CV (October 24, 2018)
Justices Stoddart, Whitehill (Opinion, linked here), and Boatright

Ken Carroll

AZS suffered a default judgment in May of 2017. But because there were other parties to the case, that judgment didn’t become final until August of 2017 when the trial court severed the claims and judgment against AZS. As is common, the severance order directed that those claims and that default judgment be severed from the existing case “into a new cause … which will be docketed as Cause No. ________________.” The filing fee for this new cause was not paid and the new cause was not opened until May of the following year. AZS filed a motion for new trial in the new cause, which was not granted, and then attempted to appeal the default judgment.

The Dallas Court of Appeals, however, dismissed the appeal as untimely. Although the severance order contained a blank for the “new cause” number and despite the fact the new cause was not actually docketed for several months, the order of severance was not conditioned on the opening of that new cause. “Whether the trial court clerk ever creates a physically separate file or assigns a new cause number,” the Court said, “does not affect the finality of an unconditional severed judgment.” Consequently, the appellate clock began ticking when the order of severance was entered. So, AZS’s appeal, filed almost a year later, was untimely.