                                Fourth Court of Appeals
                                        San Antonio, Texas
                                   MEMORANDUM OPINION
                                            No. 04-15-00342-CV

                     VILLA DIJON CONDOMINIUM ASSOCIATION, INC.
                             and Implicity Management Company,
                                          Appellants

                                                       v.

                                  Mary WINTERS and Mila Cheatom,
                                            Appellees

                     From the 166th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2015-CI-03926
                          Honorable John D. Gabriel, Jr., Judge Presiding 1

Opinion by:       Jason Pulliam, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Jason Pulliam, Justice

Delivered and Filed: September 7, 2016

APPEAL ABATED AND CAUSE REMANDED WITH INSTRUCTIONS

           In this appeal from a default judgment, appellants Villa Dijon Condominium Association,

Inc. and Implicity Management Company assert the trial court erred in concluding it did not have

plenary jurisdiction to grant their motion for new trial. Because we hold the trial court had plenary

jurisdiction to rule on the motion for new trial, and the trial court’s refusal to act is remediable, we



1
  The Honorable John D. Gabriel, Jr. signed the default judgment in the underlying cause. The Honorable Stephani
Walsh presided over the hearings on appellants’ motion for new trial and appellees’ motion for rehearing and ruled
the trial court did not have plenary jurisdiction to grant appellants’ motion for new trial.
                                                                                                       04-15-00342-CV


abate the appeal and remand the cause to the trial court with instructions to enter an order ruling

on the motion for new trial.

                                                   BACKGROUND

         Mary Winters and Mila Cheatom each own a condominium. Villa Dijon Condominium

Association, Inc. is the condominium owners’ association, and Implicity Management Company

is the company that manages the condominium owners’ association. Winters and Cheatom sued

Villa Dijon and Implicity for negligence and breach of contract after they failed to repair

foundation damage to Winters’s and Cheatom’s condominiums. In the same lawsuit, Winters and

Cheatom also asserted claims against three other defendants.

         On March 9, 2015, the trial court signed a default judgment against Villa Dijon and

Implicity and, in the same judgment, ordered the claims against Villa Dijon and Implicity severed

into a separate cause. On April 6, 2015, Villa Dijon and Implicity filed a motion to set aside the

default judgment and for a new trial. The motion included both the original cause number and the

severed cause number in the caption; however, the motion was filed only in the original cause

number. 2

         On April 10, 2015, Winters and Cheatom filed a response to Villa Dijon and Implicity’s

motion, and the trial court conducted a hearing on the merits of the motion. The trial court

announced it was granting the motion for new trial and setting aside the default judgment

conditioned upon Villa Dijon and Implicity paying Winters and Cheatom $7,460.40 in costs and

attorney’s fees incurred in obtaining the default judgment.




2
  At the trial court’s subsequent hearing on the motion, the district clerk responded to the trial court’s inquiry about
the e-filing of a document with two cause numbers and informed the trial court “people counter file them because
they’re only set up to accept one cause number.” Although a paralegal testified she was unable to file the motion in
the severed cause number because it was closed, the district clerk informed the trial court, “They never close the files,
computer-wise or otherwise.”

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                                                                                              04-15-00342-CV


        The trial court never signed an order granting the motion for new trial. Instead, on April

13, 2015, Winters and Cheatom filed a motion for rehearing and motion to deny entry of an order

granting the motion for new trial. In their motion, Winters and Cheatom argued the trial court lost

plenary jurisdiction to grant the motion for new trial. Primarily relying on the Texas Supreme

Court’s opinion in Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985), Winters and Cheatom asserted

that because the motion for new trial was filed only in the original cause number, the motion did

not extend the trial court’s plenary jurisdiction to set aside the default judgment in the severed

cause. Therefore, Winters and Cheatom argued the trial court lost plenary jurisdiction thirty days

after the default judgment was signed.

        The trial court conducted a hearing on Winters’s and Cheatom’s motion for rehearing over

two days on April 30, 2015 and May 1, 2015. Before the second day of the hearing, Villa Dijon

and Implicity filed a response to the motion for rehearing. In their response, Villa Dijon and

Implicity cited case law which noted “the Texas Supreme Court has all but expressly overruled

the [Philbrook] decision.” Leal v. City of Rosenberg, 17 S.W.3d 385, 386 (Tex. App.—Amarillo

2000, order).

        At the conclusion of the hearing, the trial court announced its ruling as follows:

                 I go back to — I’ve lost jurisdiction on the 30th day. And this is a
        memorandum opinion, 3 but it does seem to discuss the archaic position of
        Philbrook, but it doesn’t set it aside either. So perhaps, this Fourth Court needs to
        set it aside. But I’m going to find that I do not have — did not have jurisdiction on
        the 10th, and vacate my order which I think requires you [plaintiffs’ attorney] to
        give back the money [attorney’s fees and costs].




3
 The opinion referenced by the trial court is Levin v. Espinosa, No. 03-14-00534-CV, 2015 WL 690368 (Tex. App.—
Austin February 3, 2015, no pet.).

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                                                                                     04-15-00342-CV


                            TRIAL COURT’S PLENARY JURISDICTION

       The trial court’s plenary jurisdiction in this case turns on whether the motion for new trial

filed in the original cause number extended the trial court’s plenary jurisdiction to set aside the

default judgment. This is not the first time this court has addressed the effect the filing of the

motion for new trial in the underlying cause had on jurisdiction. This court previously issued an

order in this appeal directing Villa Dijon and Implicity to show cause why the appeal should not

be dismissed for want of jurisdiction because the notice of appeal, which was filed on June 3, 2015,

would have been due on April 8, 2015 “[a]bsent a timely filed motion that would extend the

deadline to file a notice of appeal.” After Villa Dijon and Implicity filed a response, this court

issued a subsequent order retaining jurisdiction over the appeal, reasoning:

               Appellants’ response points us to the clerk’s record which shows the motion
       to set aside the default judgment and for new trial was filed within thirty days of
       the judgment and the motion caption included both the original and severed cause
       numbers. The trial court clerk filed the motion in the original cause number but not
       in the severed cause number. Despite the trial court clerk’s apparent error, we
       conclude Appellants’ motion for new trial and notice of appeal were “a bona fide
       attempt to invoke the appellate court jurisdiction.” See Blankenship v. Robins, 878
       S.W.2d 138, 139 (Tex. 1994) (quoting Mueller v. Saravia, 826 S.W.2d 608, 609
       (Tex. 1992)); Tex. G. & S. Invs., Inc. v. Constellation Newsenergy, Inc., 459 S.W.3d
       252, 257 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

The Texas Supreme Court’s decision in Blankenship is one of the decisions courts have cited as

indicating the Texas Supreme Court has all but expressly overruled Philbrook. See Leal, 17

S.W.3d at 386; Matlock v. McCormick, 948 S.W.2d 308, 310 (Tex. App.—San Antonio 1997, no

pet.). As signaled in our prior order, we agree Philbrook has all but expressly been overruled by

the Texas Supreme Court.

       In Philbrook, Delvin Stanley Philbrook sued Owens-Illinois, Inc. and other defendants.

683 S.W.2d at 379. After Owens-Illinois failed to answer, “Philbrook moved to sever his claims

against Owens-Illinois and obtained a default judgment in the severed cause.” Id. Owens-Illinois


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                                                                                                    04-15-00342-CV


filed a motion for new trial in the original cause rather than the severed cause. Id. The trial court

“nevertheless considered the motion as if filed in the severed cause and signed an order” granting

the motion for new trial fifty-three days after the default judgment was signed. Id. Philbrook filed

an original mandamus proceeding in the court of appeals arguing the motion for new trial in the

original cause did not extend the trial court’s plenary jurisdiction in the severed cause. Id. The

court of appeals denied mandamus relief; however, the Texas Supreme Court granted relief

concluding, “Because the motion for new trial was filed in the wrong cause, it did not operate to

extend the court’s plenary power over its judgment beyond the thirty days prescribed by TEX. R.

CIV. P. 329b(d).” Id. The court asserted, “In addition to being filed timely, the motion for new

trial must be filed in the same cause as the judgment the motion assails.” Id.

         Although the Texas Supreme Court has not expressly overruled Philbrook, it has

questioned whether it was properly decided on numerous occasions. 4 See Blankenship, 878

S.W.2d at 138-39 (reversing court of appeals’ judgment dismissing appeal based on Philbrook and

asserting courts of appeals’ decisions should turn on substance rather than procedural technicality);

Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 278 (Tex. 1994) (noting

court previously “questioned whether Philbrook was correctly decided”); McRoberts v. Ryals, 863

S.W.2d 450, 455 (Tex. 1993) (noting “Philbrook is not to be given an expansive reading that

invalidates bona fide attempts to appeal”); City of San Antonio v. Rodriguez, 828 S.W.3d 417, 418

(Tex. 1992) (“Assuming that Philbrook was correctly decided, it is not controlling in this case.”);

Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992) (“Assuming that Philbrook was properly



4
  Many intermediate appellate courts, including this court, also have questioned the Philbrook decision and refused to
follow it. See, e.g., Manzo v. Lone Star Nat’l Bank, No. 13-14-00155-CV, 2015 WL 214012, at *1 n.1 (Tex. App.—
Corpus Christi Jan. 8, 2015, no pet.) (mem. op.); Leal, 17 S.W.3d at 385; Hernandez v. Koch Mach. Co., 16 S.W.3d
48, 56 (Tex. App.—Houston [1st Dist.] 2000, pet. denied); Matlock, 948 S.W.2d at 310; but see Levin, 2015 WL
690368, at *1-3 (following Philbrook where trial court clerk notified appellant the motion for new trial was misfiled
in the original cause number when appellant could still timely file his notice of appeal) (mem. op.).

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                                                                                                     04-15-00342-CV


decided, Mueller’s appeal still survives dismissal under its standard.”). The most relevant of these

decisions for purposes of our analysis is Mueller.

         In Mueller, Jolene Mueller filed a medical malpractice action against a doctor and a

pharmacy under cause number 90-CI-11255. 826 S.W.2d at 609. On February 11, 1991, the trial

court rendered a take-nothing summary judgment in favor of the doctor. Id. In that same judgment,

Mueller’s claims against the doctor were severed and assigned a new cause number, 90-CI-

11255A. Id. On February 26, 1991, a take-nothing summary judgment was granted in favor of

the pharmacy in the original cause number. Id. On March 7, 1991, Mueller filed a motion for new

trial in the original cause number seeking a new trial in both the original cause and the severed

cause. Id. Mueller subsequently appealed the summary judgment in favor of the doctor. Id. The

court of appeals dismissed Mueller’s appeal relying on Philbrook “for the proposition that, when

a motion for new trial is filed in a cause not containing the judgment the motion assails, the court’s

plenary power over its judgment is not extended beyond the 30 days prescribed by TEX. R. CIV. P.

329b.” Id. The Texas Supreme Court held, “Assuming that Philbrook was properly decided,

Mueller’s appeal still survives dismissal under its standard.” Id. The court reasoned:

         Philbrook demands no more than that “the motion for new trial must be filed in the
         same cause as the judgment the motion assails.” Philbrook, 683 S.W.2d at 379
         (emphasis added). That was the case here. First, the judgment assailed was filed
         under the original cause number 90–CI–11255. Consequently, Mueller properly
         filed her motion for new trial under that same cause number, rather than the severed
         cause number 90–CI–11255A.

Id. 5 (emphasis in original).


5
  The court also noted all subsequent motions and rulings by the trial court were made under the original cause number,
and “[t]o follow the court of appeals’ own reasoning in a similar case, a party should not be punished ‘for failure to
comply with the terms of an order of severance ignored by [both the opposing party] and the court … [and] should be
able to look to [the] judgment to determine the cause number under which he should file his motion for new trial.’”
Id. (quoting Southland Paint Co. v. Thousand Oaks Racket Club, 687 S.W.2d 455, 457 (Tex. App.—San Antonio
1985, no writ)). Although Winters and Cheatom filed their response to the motion for new trial in the severed cause
number, we note the trial court conducted a hearing on the merits of the motion for new trial and verbally announced
the motion was granted. Winters and Cheatom only raised the issue regarding the trial court’s plenary jurisdiction in

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                                                                                                   04-15-00342-CV


         Similarly, unlike the default judgment in Philbrook which was “signed in the severed

cause,” 6 the default judgment in the instant case was signed in the original cause, and the caption

of the default judgment contains the original cause number:




Accordingly, Villa Dijon and Implicity properly filed their motion for new trial in the original

cause, and the trial court retained plenary jurisdiction to rule on the motion for new trial when its

hearing was held on April 10, 2015. See id. Therefore, the trial court erred in ruling it did not

have plenary jurisdiction to grant the motion for new trial on April 10th.

                                                    REMEDY

         Rule 44.4 of the Texas Rules of Appellate Procedure entitled “Remediable Error of the

Trial Court” provides:



their motion for rehearing and motion to deny entry of order granting new trial. Accordingly, the record in this case
does not reflect any confusion was created by Villa Dijon’s and Implicity’s motion being filed only in the original
cause number. See Matlock, 948 S.W.2d at 310 (holding filing of motion for new trial under original cause rather
than severed cause should not defeat jurisdiction where there is no suggestion the parties were confused); but see
Garza v. CMH Homes, Inc., No. 04-01-00845-CV, 2002 WL 31465810, at *2 n.1 (Tex. App.—San Antonio Nov. 6,
2002, no pet.) (following Philbrook where record suggested appellees were confused because appellants filed motion
for new trial in original cause number and failed to provide the appellees notice of the hearing on the motion) (mem.
op.).
6
  683 S.W.2d at 379 (noting Philbrook “obtained a default judgment in the severed cause” and trial judge “signed the
default judgment in the severed cause”).

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                                                                                                      04-15-00342-CV


                 (a)      Generally. A court of appeals must not affirm or reverse a judgment
         or dismiss an appeal if:
                          (1)    the trial court’s erroneous action or failure or refusal to act
         prevents the proper presentation of a case to the court of appeals; and
                          (2)    the trial court can correct its action or failure to act.
                 (b)      Court of Appeals Direction if Error Remediable.                  If the
         circumstances described in (a) exist, the court of appeals must direct the trial court
         to correct the error. The court of appeals will then proceed as if the erroneous action
         or failure to act had not occurred.

TEX. R. APP. P. 44.4. In this case, the trial court’s error in concluding it lost its plenary jurisdiction

when it granted Villa Dijon and Implicity’s motion for new trial is remediable by abating the appeal

and instructing the trial court to enter an order on the motion for new trial. See Well v. Tex. Dep’t

of Family & Protective Servs., 173 S.W.3d 178, 183 (Tex. App.—Austin 2005, no pet.) (relying

on rule 44.4 to abate appeal and instruct trial court to hold a hearing on a motion for new trial); In

re T.A.C.W., 143 S.W.3d 249, 250-51 (Tex. App.—San Antonio 2004, no pet.) (abating appeal

and remanding for a hearing where trial court did not make a ruling on a motion for new trial, even

though a ruling was statutorily required, because the trial court questioned its jurisdiction); see

also Obella v. State, No. 07-15-000271-CR, 2016 WL 3660018, at *3 (Tex. App.—Amarillo July

1, 2016, no pet.) (citing rule 44.4 and concluding “trial court can correct its error by conducting a

hearing on appellant’s motion for new trial”); Reyes v. State, 82 S.W.3d 351, 354 (Tex. App.—

Houston [1st Dist.] 2001, no pet.) (citing rule 44.4 to abate appeal and remand for hearing on

motion for new trial). If the trial court grants the motion for new trial, this appeal will be dismissed.

See Wall, 173 S.W.3d at 183. If the trial court denies the motion, the record will be supplemented,

and the parties will be permitted to supplement their briefs to address the trial court’s ruling. 7 See

id.


7
  Winters and Cheatom raise cross-points in their brief arguing issues relating to whether the trial court would have
abused its discretion in granting or denying the motion for new trial. We do not address these issues for two reasons.
First, we would not have jurisdiction in this appeal to address issues relating to a trial court’s order granting a new
trial because “[a]n order granting a new trial is an unappealable, interlocutory order.” Fruehauf Corp. v. Carrillo, 848

                                                         -8-
                                                                                                    04-15-00342-CV


                                                  CONCLUSION

         The trial court erred in concluding it lacked jurisdiction to grant Villa Dijon’s and

Implicity’s motion for new trial on April 10, 2015. The trial court’s error, however, is remediable.

Therefore, we abate the appeal, remand the cause, and instruct the trial court to enter an order on

the motion for new trial.

                                                          Jason Pulliam, Justice




S.W.2d 83, 84 (Tex. 1993). Second, in the absence of an order by the trial court ruling on the motion for new trial,
the issues raised in the cross-points are not ripe for this court’s consideration. See Patterson v. Planned Parenthood
of Houston & Se. Tex., Inc., 971 S.W.2d 439, 443 (Tex. 1998) (noting issue is not ripe when its resolution depends
“upon events that have not yet come to pass” and Texas courts “are not empowered to give advisory opinions”).

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