                                                                                                  ACCEPTED
                                                                                              04-15-00676-CV
                                                                                  FOURTH COURT OF APPEALS
                                                                                       SAN ANTONIO, TEXAS
                                                                                        12/30/2015 3:11:37 PM
                                                                                               KEITH HOTTLE
                                                                                                       CLERK

                                 Case No. 04-15-00676-CV

                 IN TH FOURTH COURT OF APPEALS            FILED IN
                       SAN ANTONIO, TEXAS          4th COURT OF APPEALS
                                                    SAN ANTONIO, TEXAS
__________________________________________________________________
                                                   12/30/15 3:11:37 PM
                                                                        KEITH E. HOTTLE
JOSE GEORGE, MATILDE D. GEORGE, AND ELAINE GEORGE, Appellants
                                                Clerk


                                             v.

                          COMPASS BANK, Appellee
    __________________________________________________________________

          RESPONSE TO COMPASS BANK’S MOTION TO DISMISS
    __________________________________________________________________

TO THE HONORABLE FOURTH COURT OF APPEALS:

     Jose George, Matilde D. George, and Elaine George respond to Compass Bank’s

Motion to Dismiss for Lack of Jurisdiction and in support will show the following:

     Because the Clerk’s Record has not been filed, this response is supported by an

appendix filed together with this response. The items contained in the appendix are

authenticated by the Declaration of Alberto Alarcon, which is contained in the appendix

as item no. 19.

                                          FACTS

      Plaintiff, Jose George, filed suit in Webb County against his son Jose Alberto George

(Alberto) and his wife, Fanny Fernandez, for misappropriation of more than

$500,000.00 entrusted to Alberto for the benefit of his father. See Plaintiff’s Original

Petition, Appendix 1. Shortly thereafter, Jose George nonsuited his claims against Fanny

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Fernandez. See Notice of Nonsuit, Appendix 1A. Alberto filed a third party petition against

Compass Bank and Citibank claiming that some transfers made from Alberto’s

accounts at Compass Bank ($25,000.00) and Citibank ($60,000.00) to father were

unauthorized. See Defendant Jose Alberto George’s Original Answer, Jury Demand, Request of

Disclosure, Counterclaim, and Cross-Claims, Appendix 2. On motions to transfer venue, filed

by third-party defendants Citibank and Compass Bank, the entire case was transferred

from Webb County to Bexar County. See Order Transferring Venue, Appendix 3.

    From the onset of the litigation, Compass Bank froze two accounts belonging to

Matilde George and two accounts belonging to Elaine George, wife and daughter of

Jose George. See affidavit of Alberto Alarcon and demand letter sent by Alberto Alarcon to

Compass Bank on February 5, 2014, with attachments which are the demands for payment signed by

Elain George and Matilde George, Appendix 4. Strangely, Compass Bank sought permission

to interplead the accounts maintained at Compass Bank by Matilde George and Elaine

George without unconditionally tendering the funds to the trial court. See Compass

Bank’s Motion to Approve Interpleader, Appendix 5. Matilde George held $528,422.36 and

Elaine George held $282,038.58 in the accounts. Id. Compass Bank also froze two

smaller accounts belonging to Jose George, totaling $6,534.95, and also sought

permission to interplead these funds as well, without unconditionally tendering them to

the trial court. Id. Compass Bank sought attorney’s fees for interpleading the funds. Id.

Compass Bank also made an unintelligible breach of contract claim against father. See

                                              2
 
 
Compass Bank’s Motion for Summary Judgment, Appendix 6. Early on in the case, the trial

court denied Compass Bank’s request for permission to interplead their account. Docket

Sheet, Appendix 7. Since Compass Bank still refused to pay on the accounts, Jose George,

wife, and daughter made claims against Compass Bank seeking the payment of their

accounts. See First Amended Answer and Counterclaim of Jose George, Matilde D. George, and

Elaine George, Appendix 8.

    Father nonsuited the claims against son and son nonsuited the claims against

Compass Bank, Citibank, and father. See Notices of Nonsuit, Appendix 9 and 10.

Nonetheless, Compass Bank proceeded to seek and obtain a take nothing summary

judgment on the claims of son against Compass Bank and for attorney’s fees against

son of $100,836.55. See Motion for (Second) Partial Summary Judgment and Order granting same,

Appendix 11 and 12. This summary judgment also had the effect of disposing the claims

against the father to the extent son alleged the transfers were unauthorized. Id. The

summary judgment in favor of Compass Bank and against son was severed from any

other claims and parties. See Order of Severance, Appendix 13. At that point, the only

remaining parties and claims were those where Compass Bank persisted, despite being

denied earlier, to seek permission to interplead the accounts of Alberto’s parents and

sister, the vague claim against father for breach of contract and parents’ and daughter’s

claim for payment of their accounts. See First Amended Answer and Counterclaim of Jose

George, Matilde D. George, and Elaine George, Appendix 8.

                                             3
 
 
    Compass Bank filed a second motion to allow interpleader. See Motion to Allow

Interpleader (Second), Appendix 14. On July 30, 2015, the Court allowed Compass Bank

to interplead the funds in the accounts of father, wife and daughter, but allowed

Compass Bank to retain $100,836.55 (the exact amount, to the penny, awarded in

attorneys’ fees against son) as reasonable attorneys’ fees. See Order Allowing the

Interpleader, Appendix 15. Significantly, the Court acknowledged in the order allowing

the interpleader that “[t]he parties have represented that no other party could claim to

the entitled to the funds in dispute and/or a portion thereof.” Id. In the same order,

the trial court discharged Compass Bank from any liability to the account holders and

the son and his wife and dismissed all claims against Compass Bank with prejudice. Id.

At that point, no claims remained pending between any parties. The only matter

remaining was the withdrawal of the funds by the owners of the accounts, father, wife

and daughter, but this was a ministerial act because no one, other than their owners,

had made any claims to the accounts.

    Compass Bank also moved for summary judgment on the claims for payment of the

accounts made by father, wife and daughter and on an undefined claim that the father

had breach the account agreement with respect of the transfers totaling $25,000.00 from

son’s account to father’s account, notwithstanding that the trial court had granted

summary judgment against son that the transfers were authorized. See Compass Bank’s

Motion for Summary Judgment, Appendix 16. Compass Bank also sought attorney’s fees in

                                           4
 
 
the exact amount, to the penny, of the attorney’s fees awarded against son. Id. The

claim for attorneys’ fees was apparently based on the claim that parents and daughter

had made an improper claim to their accounts. Id. Parents and daughter responded and

filed a counter-motion for summary judgment for the payment of their accounts, given

that no one, except the owners, had made a claim against any of their accounts. See

Response and Countermotion for Summary Judgment, Appendix 17.

    On July 30, 2015, the trial court granted Compass Bank’s motion for summary

judgment and denied parents’ and daughter’s counter-motion for summary judgment

for the payment of their accounts. See Summary Judgment Order, Appendix 18. The Court

held parents and daughters liable for the $100,836.55 in attorney’s fees awarded against

son. Id. This order appears to be redundant because the trial court allowed the

interpleader and granted the same attorneys’ fees, which basically is the same relief the

summary judgment grants.

    In any event, the summary judgment, together with the order allowing the

interpleader, was final because it disposed of all claims and parties still remaining after

non-suits and the prior severance of claims between son and Compass Bank. Id. The

only matter left was the ministerial act of the withdrawal of the funds by their owners

since no one other than their owners had ever made any claim to the accounts. Id.

Although there was no need to sever the summary judgment and order allowing the

interpleader into a separate case to achieve finality, the trial court signed an order

                                            5
 
 
severing the claims and parties disposed from the no-longer-pending claims and parties.

See Order of Severance, Appendix 18.

     Peculiarly, the order granting severance was signed by the trial court on July 30,

2015, leaving blank the space where the new case number was to be inserted, although

it purports to be a number to be assigned by the trial court at the same time the order

is signed. Id. On that same day, copies were made of the severance order with the blank

space and they were hand-delivered to counsel for both Compass Bank and Jose,

Matilde and Elaine George. See Declaration of Alberto Alarcon, Appendix 19. Until the filing

of the motion to dismiss for lack of jurisdiction, counsel for Jose, Matilde and Elaine

George had never seen Exhibit “B” attached to said motion where the original cause

number was erased from the order of severance and stamped with the new number and

style, apparently by the Clerk. Id.

    Eleven days after the July 30, 2015 orders, Jose, Matilde and Elaine George, using

the original case number, filed their motion seeking to modify, correct and reform the

orders of July 30, 2015: 1) the summary judgment on all claims between Jose, Matilde

and Elaine and Compass Bank (which within denied their counter-motion for summary

judgment), 2) the order granting Compass Bank’s second motion to approve

interpleader and 3) the severance order. See Motion to Modify, Correct and Reform Judgment,

Appendix 20. Compass Bank responded, also using the original case number, ignoring

the severed number and never complaining that another number should be used,

                                             6
 
 
obviously understanding that the judgment of July 30, 2015, was a final appealable

judgment, even without the severance order. See Response Motion to Modify, Correct and

Reform Judgment, Appendix 21.

    Later, Compass Bank deposited the funds in the accounts in the registry of the trial

court (less the $100,836.55 awarded in attorney’s fees), using the original case number,

both on the transmittal letter and on the checks it issued to the Clerk and to itself. See

Letter to District Clerk and checks, Appendix 22. The Georges moved to withdraw the funds

in the registry of the court, using the original case number. See Motion to Withdraw Funds

Deposited in the Registry of the Court, Appendix 23. Compass Bank used the original case

number to oppose the Georges’ motion to withdraw funds, and requested under the

original case number that $114,065.48 be left in the registry of the trial court as security

for its judgment for attorney’s fees on appeal and future appellate fees. See Response to

Motion to Withdraw Funds, Appendix 24. The trial court also ignored the severed number

and used the original case number to allow the withdrawal of some funds and ordered

the retention of $114,065.48 to secure the judgment for appellate attorney’s fees and

future attorney’s fees. See Docket Sheet, Appendix 7. The District Clerk also ignored the

severed number and issued the check to the Georges using the original case number.

See Check, Appendix 25.




                                             7
 
 
                        SUMMARY OF THE ARGUMENT

        Compass Bank, assuming that appellants filed their motion to modify, correct or

reform judgment and then their notice of appeal using the wrong case number, presents

a question resolved by the Supreme Court more than 20 years ago: does a court of

appeals lack appellate jurisdiction simply because the appellant files a motion for new

trial and then, more than 30 days after the judgment, a notice of appeal, using the

original (wrong) case number for both rather than the numbered assigned to the

judgment after severance? The answer: no. This case and many others since that

decision exemplify the wisdom of that ruling. Appellate subject matter jurisdiction

should be based on substance, not numbering technicalities, lest the right to appeal be

lost to trivial mechanics. Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex. 1994).

    Blankenship is on point, assuming, arguendo, the motion to modify, correct, or reform

judgment was filed using the wrong case number. Thus, this Court rightly determined,

on another case on point, that filing a motion for new trial under the original case

number rather than under the severed case number does not defeat the appellate court’s

jurisdiction. Matlock v. McCormick, 948 S.W.2d 308, 310 (Tex. App.-San Antonio 1997,

no writ). Concentrating on substance, this Court upheld its jurisdiction stating that “to

the extent the motion for new trial refers to the summary judgment granted…and it

was the only summary judgment granted…the misnumbering” is just a technical

formality which does not trump substance. Id.

                                            8
 
 
     Moreover, appellate jurisdiction should be upheld when the severance order is itself

an erroneous part of the judgment appealed from. This can occur when, as here, the

severance order is erroneous because there are no parties and claims left to sever after

the summary judgment. The original number was, therefore, the correct number to use

for the motion to modify, correct or reform judgment and then, for the notice of appeal.

                                      ARGUMENT

I.       A motion for new trial, and then, more than 30 days after the judgment, a
         notice of appeal, filed using the original (wrong) case number for both
         rather than the numbered assigned to the judgment after severance
         invokes appellate jurisdiction if the there is no confusion regarding the
         judgment assailed.

     The Supreme Court’s decision in Blankenship is on point. In that case, the trial court

granted summary judgment, and, to finalize the judgment for purposes of appeal,

severed the judgment from the claims against the remaining defendants. Blankenship,

878 S.W.2d at 138. The trial court’s order stated that the remaining defendants would

be assigned a new case number, leaving the summary judgment under the original case

number. Id. The appellant filed a motion for new trial and after it was overruled by

operation of law, the appellant filed the then equivalent to a notice of appeal. Id. Both

were filed using the severed (wrong) case number. Id. The Supreme Court upheld

appellate jurisdiction stating “the decisions of the courts of appeals [should] turn on

substance rather than procedural technicality.” Id. at 139. Moreover, the Supreme Court

stated that the appellant’s actions (the filing of the motion for new trial, and after it was

                                              9
 
 
overruled by operation of law, the filing of the then equivalent to the notice of appeal)

“constituted a bona fide attempt to invoke the appellate jurisdiction.” Id.

       Ironically, Compass Bank attempts to distinguish Blankenship with technicalities.

The only difference from this case is that in Blankenship the severance order stated that

remaining defendants would be assigned a new case number and the judgment would

remain in the original case number. Id. at 138. In this case, the judgment was to go to

the new number. As in this case, everyone in Blankenship, the parties, the clerk and the

trial court, ignored the order of severance. Id. The appellant filed a motion for new trial

and the appellee filed a reply under the severed case (wrong) number rather than the

original (correct) number. Id. Here, the Georges filed the motion to modify and correct

judgment and Compass Bank responded, both using the original case number. Compass

Bank deposited the monies using the original case number. The Georges sought to

withdraw the funds filing a motion under the original case number. Compass Bank

opposed the motion and requested that some money should stay in the registry of the

Court using the original case number. The trial court ordered some money released and

some money to stay as security for appellate and future attorney’s fees, using the original

case number.

      Compass Bank also attempts to distinguish Blankenship with an incorrect

statement of what happened in that case. According to Compass Bank, that “contrary

to the order the trial clerk instead assigned a new cause number to the summary

                                            10
 
 
judgment, leaving the remaining claims in the original case.” See Motion to Dismiss p. 11.

And, that “the trial court and the parties then proceeded in accordance with the clerk’s

actions.” Id. All the clerk did, however, was to issue an abstract of judgment with the

severed case number, perhaps the equivalent of issuing a check with the original case

number in this case. Blankenship, 878 S.W.2d at 138. Neither could trump the order of

severance.

       Compass Bank relies heavily on Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985).

Since Philbrook, however, the Supreme Court has twice expressly criticized and

questioned the validity of its decision in Philbrook. See City of San Antonio v. Rodriguez, 828

S.W.2d 417, 418 (Tex. 1992) and Texas Instruments v. Tetron Energy Management, 877

S.W.2nd 276, 278 (Tex. 1994). More specifically, in Texas Instrument the Supreme Court

questioned the soundness of Philbrook’s holding “that a motion for new trial filed in a

case did not extend the trial court’s plenary power to set aside a judgment severed from

that case.” Id. Immediately after that sentence, the Supreme Court stated “[h]owever,

in City of San Antonio…. (per curiam), we questioned whether Philbrook was correctly

decided and held that a notice of appeal was effective even though it bore the wrong

case number when there was no suggestion of confusion” as to which judgment was

being assailed. Id. The Supreme Court reiterated and reminded courts of appeals “that

decisions should turn on substance rather than procedural technicality.” Id.



                                              11
 
 
    Furthermore, Compass Bank attempts to distort Blankenship by borrowing similar

language from another Supreme Court case, In re K.A.F., 160 S.W.3d 923, 928 (Tex.

2005), which dealt with a totally different issue than the one presented here. K.A.F.

involved an accelerated appeal in which the appellant did not file a notice of appeal

within the twenty days allowed by the Rules of Appellate Procedure. Id. The appellant

argued that a motion for new trial should extend the time to file the notice of appeal as

in the case of an ordinary appeal or, in the alternative, should serve as a substitute for

the notice of appeal. Id. at 925-928. As to the first issue, the Supreme Court held that

the Rules of Appellate Procedure do not provide for an extension to file a notice of

appeal if a motion for new trial is filed in a case where an accelerated appeal is available.

Id. As to the second issue, the Supreme Court held that “because a motion for new trial

extends the deadline to file a notice of appeal…a motion for new trial logically cannot

serve as a substitute for a notice of appeal.” Id. That is the context in which the Supreme

Court used language stating that “a motion for new trial is not an instrument that may

be considered a bona fide attempt to invoke the appellate jurisdiction…” Id. at 928. In

other words, a motion for new trial is not a notice of appeal.

    But the issue and context in Blankenship was not whether a motion for new trial is a

substitute of a notice of appeal. The issue was whether a motion for new trial filed using

the wrong cause number is part of the perfection-of-appeal process to the extent it

extends the period to file the notice of appeal. Id. at 139. The answer: yes. Id. Compass

                                             12
 
 
Bank’s use of similar language used by the Supreme Court in a totally different context

and issue is perhaps more technical and lacking in substance than filing a motion for

new trial using the wrong cause number.

      Another case directly on point is this Court’s decision in Matlock. Just as in this

case, a summary judgment was severed into a new case and a new number was assigned

to the case. Id. at 310. Unlike this case, however, in Matlock there were remaining claims

and parties after severance. The appellant filed a motion for new trial under the original

case number. Id. Appellee claimed the motion for new trial was not effective to extend

the time to file a notice of appeal and sought to dismiss the appeal for lack of

jurisdiction. Id. Citing Blankenship and others, the Court stressed that substance trumps

form. “To the extent the motion for new trial refers to the summary judgment

granted…and it was the only summary judgment granted…the misnumbering” is just a

technical formality which did not cause confusion regarding which judgment was being

appealed. Id.

      Compass Bank dismisses Matlock as a case decided before K.A.F. As seen above,

the Supreme Court’s language in K.A.F. that a motion for new trial “may not be

considered a bona fide attempt to invoke the appellate court’s jurisdiction” was in the

context of whether a motion for new trial may be used as a substitute for a notice of

appeal.” Id. at 925-928. The case had nothing to do with a motion for new trial filed

using a wrong case number and then a notice of appeal also filed using the wrong case

                                           13
 
 
number. Id. All the Supreme Court said in K.A.F. is that a motion for new trial is not

a substitute for a notice of appeal, and not that a motion for new trial and then a notice

of appeal, both filed in a wrong case number, is not a bona fide attempt to appeal. Id.

Compass Bank’s application of similar language totally in a different context is illogical

and technical.

       For other cases holding that a motion for new trial filed using the wrong case

number extends the time to file the notice of appeal and the appeal is perfected when

the notice of appeal is filed also using the wrong case number, see Mueller v. Saravia, 826

S.W.2d 608, 609 (Tex. 1992) (motion for new trial filed using original case (wrong)

number after severance was “bona fide” attempt to perfect appeal); Jones v. Tummel, No.

13–13–00668–CV, 2014 WL 2937011, at *2 (Tex. App.–Corpus Christi June 26, 2014,

no pet.) (mem. op.) (“the motions for new trial [filed using original cause number] were

bona fide attempts to invoke appellate jurisdiction”); Paselk v. Rabun, 293 S.W.3d 600,

607 (Tex. App.-Texarkana 2009, pet. denied) (concluding that motion for new trial

extended appellate deadlines despite being filed using the wrong cause number); Leal v.

City of Rosenberg, 17 S.W.3d 385, 386 (Tex. App.–Amarillo 2000, order) (holding that

timely motion for new trial filed using original cause number extended time to file notice

of appeal in severed cause); Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 56 (Tex. App.-

Houston [1st Dist.] 2000, pet denied) (same); Hall v. Stephenson, 919 S.W.2d 454, 463

(Tex. App.-Fort Worth 1996, writ denied) (same); Blizzard v. Select Portfolio Servicing, No.

                                            14
 
 
03–13–00716–CV, 2014 WL 2094324, at *1 (Tex. App.–Austin May 13, 2014, order)

(same).

       In this case, there can be no doubt that the motion for to modify, correct or

reform judgment specifically makes reference to and assails the summary judgment, the

order allowing the interpleader and the order of severance, all signed on July 30, 2015.

Those are the orders complained of and are the only orders signed on July 30, 2015.

There is no confusion as to the orders appealed from.

II.    The appeal was perfected using the case number under which the final
       judgment disposing of all parties and claims was entered.

       Moreover, the summary judgment and the order allowing interpleader disposed

of all parties and claims, except for the ministerial act of the disbursement of the funds

interpleaded. All other claims had been nonsuited or severed in the prior severance

order. The summary judgment, combined with the order allowing interpleader, were

final and appealable. They were entered using the original case number. The severance

had no purpose and, therefore, is an error. In such a situation, it is correct to use the

original case number in a motion to correct, modify or reform judgment and, after, the

notice of appeal.

                                       PRAYER

    Appellants pray that Compass Bank’s motion to dismiss for lack of jurisdiction be

denied.


                                           15
 
 
    Respectfully submitted,

    /s/ Alberto Alarcon
    Alberto Alarcon
      State Bar No. 00968425
    HALL, QUINTANILLA & ALARCON, PLLC
    1302 Washington St.
    Laredo, Texas 78040
    Telephone: (956) 723 5527
    Facsimile: (956) 723 8168
    Email: aalarcon@sbcglobal.net

    ATTORNEY FOR APPELLANTS




        16
 
 
                           CERTIFICATE OF SERVICE

I certify that a copy of the foregoing has been delivered to the following by the E-filing
system on this the 30th day of December, 2015:

Michael D. Conner
mconner@hirschwest.com
William P. Huttenbach
phuttenbach@hirschwest.com
1415 Louisiana, 36th Floor
Houston, Texas 77002


                                         /s/ Alberto Alarcon
                                         Alberto Alarcon




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