      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



                              CONCURRING OPINION


                The Court’s opinion is consistent with the principle that intermediate courts of

appeals are bound to follow the opinions of the supreme court in civil cases and that only the

supreme court can overrule its own decisions. Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds,

80 S.W.3d 580, 585 (Tex. 2002). Although the supreme court has openly called its Philbrook1

opinion into question in later cases, see, e.g., Blankenship v. Robins, 878 S.W.2d 138, 138 (Tex.

1994); McRoberts v. Ryals, 863 S.W.2d 450, 451 (Tex. 1993); City of San Antonio v. Rodriguez, 828

S.W.2d 417, 418 (Tex. 1992); Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992), it has never

expressly overruled it. And, because Philbrook applies directly to the facts before this Court, we

are bound to, and will, follow it.

                The fact remains, however, that courts of appeals in Texas have demonstrated

confusion about the continued viability of Philbrook and what constitutes a “bona fide attempt to


       1
           Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985).
invoke appellate jurisdiction.” See, e.g., P & A Real Estate, Inc., v. American Bank of Tex., 323

S.W.3d 618, 619 (Tex. App.—Dallas 2010, no pet.); Paselk v. Rabun, 293 S.W.3d 600, 607 (Tex.

App.—Texarkana 2009, pet. denied); Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 56 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied); Matlock v. McCormick, 948 S.W.2d 308, 310 (Tex.

App.—San Antonio 1997, no writ); Hall v. Stephenson, 919 S.W.2d 454, 463-64 (Tex. App.—Fort

Worth 1996, writ denied). Indeed, in a per curiam order issued within the last six months, this Court

concluded that filing a motion for new trial in the wrong cause number was a bona fide attempt to

invoke appellate jurisdiction, the exact opposite of what the Court has held in the present case.

Blizzard v. Select Portfolio Servicing, No. 03-13-00716-CV, 2014 WL 2094324, at *1 (Tex.

App.—Austin May 13, 2014, order) (citing Blankenship, 878 S.W.2d at 139).

               Given the supreme court’s trend toward putting substance over procedure when

reviewing attempts to invoke appellate jurisdiction, some courts of appeals believe that the supreme

court has effectively overruled Philbrook, see, e.g., Leal v. City of Rosenberg, 17 S.W.3d 385, 386

(Tex. App.—Amarillo 2000, no pet.) (noting that “the Texas Supreme Court has all but expressly

overruled the [Philbrook] decision”).2 Nevertheless, as the majority points out, the supreme court

recently clarified that a motion for new trial may not be considered a “bona fide attempt to invoke


       2
           This trend has some of its earliest beginnings in a post-Philbrook case from the
supreme court. Texas Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 278 (Tex.
1994) (explaining that since Philbrook, the supreme court had “questioned whether Philbrook was
correctly decided” and had “reiterated that ‘decisions of the courts of appeals [should] turn
on substance rather than procedural technicality’” and citing City of San Antonio v. Rodriguez,
828 S.W.2d 417 (Tex. 1992)). This trend is also present in criminal appeals. See Few v. State,
230 S.W.3d 184, 188-90 (Tex. Crim. App. 2007) (questioning Philbrook’s viability and noting that
“[a] person’s right to appeal a civil or criminal judgment should not depend upon tracking through
a trail of technicalities” in concluding that notice of appeal filed in wrong cause number did not
require dismissal of appeal).

                                                 2
the appellate court’s jurisdiction.” In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005). This conclusion

is consistent with Philbrook. As a result, Philbrook appears to govern most, if not all, cases concerning

extension of the notice-of-appeal deadline when a motion for new trial is filed using an incorrect

cause number.

                Although application of Philbrook seems directly contrary to the preference for

“substance over procedure,” which I believe should apply here, until the supreme court expressly

overrules Philbrook, we are bound to follow it. Because the Court does so here, I concur in the

Court’s opinion and judgment, but I write separately to ask the supreme court to clarify its position

on the ongoing viability of Philbrook so that courts of appeals can act uniformly when reviewing

mistaken but apparent attempts by would-be appellants to extend appellate timetables or to otherwise

invoke appellate jurisdiction.



                                                __________________________________________

                                                Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field
 Justice Pemberton joins

Filed: February 13, 2015




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