v. Belante Friar v. Christopher Blaschke ( 2016 )

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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