                                                                                             ACCEPTED
                                                                                         04-15-00676-CV
                                                                             FOURTH COURT OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
                                                                                   12/18/2015 4:36:32 PM
                                                                                          KEITH HOTTLE
                                                                                                  CLERK

                                    Case No. 04-15-00676-CV

                                                                   FILED IN
                                                            4th COURT OF APPEALS
                            IN   THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
                                     SAN ANTONIO, TEXAS     12/18/15 4:36:32 PM
                                                              KEITH E. HOTTLE
                                                                    Clerk
             Jose George, Matilde D. George, and Elaine George, Appellants

                                                v.

                                     Compass Bank, Appellee


                                From Cause No. 2014-CI-03773
                              (severed Cause No. 2015-CI-12375)
                        45th Judicial District Court, Bexar County, Texas
                         The Honorable Solomon Casseb, III, presiding


                            Motion to Dismiss for Lack of Jurisdiction


         Appellee, Compass Bank (“Compass Bank”), moves to dismiss this appeal

for lack of jurisdiction.

         Appellants Jose George, Matilde George, and Elaine George (“Appellants”)

filed a notice of appeal on October 27, 2015, in Cause No. 2014-CI-03773, Jose

George v. Jose Alberto George, et al.; in the 45th District of Bexar County, Texas.

See Exhibit A. There is no final judgment in that case.

         The notice of appeal purports to appeal from a “judgment and related orders

signed on July 30, 2015” and an order signed on September 24, 2015. The notice of

appeal omits specific mention of the trial court’s order, also signed July 30, 2015,

930505.20130509/2288018.1
severing “all claims by and between” Compass Bank and Appellants into the newly

designated Cause No. 2015-CI-12375, styled Jose George v. Compass Bank (the

“severed case”). See id.; see also Exhibit B.

         If Appellants intended to appeal from the judgment in the severed case, the

appeal is not timely. Appellants did not file a notice of appeal within thirty days

following the July 30, 2015 orders. See Tex. R. App. P. 26.1; see also Verburgt v.

Dorner, 959 S.W.2d 615, 615 (construing predecessor to Rule 26.1). Appellants did

not file any post judgment motion in the severed case within thirty days following the

July 30, 2015 orders. See Tex. R. App. P. 26.1(a). Regardless whether Appellants

intended to appeal Cause No. 2014-CI-03773 (no final judgment) or Cause No.

2015-CI-12375 (no timely notice of appeal), this Court is without jurisdiction. See,

e.g., Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985).

         In Philbrook, the Texas Supreme Court was presented with similar facts:

Philbrook sued several parties, one of whom failed to timely answer. Id., 683 S.W.2d

at 379. Philbrook’s claims against that defendant were severed and a default

judgment entered in the severed cause. Id. Nine days after default judgment was

signed in the severed cause, the defaulting defendant, Owens-Illinois, filed its answer

in the original cause. Thereafter, Owens-Illinois became aware of the default

judgment and filed a motion for new trial. This motion, however, was filed in the

original cause, not the severed cause. The trial judge nevertheless considered the


                                          2
930505.20130509/2288018.1
motion as if filed in the severed cause and signed an order setting aside the default

judgment. The order was signed fifty-three days after the default judgment. Id. The

Texas Supreme Court held that, 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). Philbrook v. Berry, 683

S.W.2d at 379.

         Here, Compass Bank obtained partial summary judgment on all claims by and

between itself and Appellants and, on the same day, obtained an order of severance

assigning a new cause number to the severed case. Exh’s B, C.1 Like the defendant in

Philbrook, Appellants filed a post-judgment motion (to modify) in the original

action, but no such motion in the severed cause. Philbrook, supra. Applying

Philbrook to this case, because Appellants’ motion was filed in the wrong action, “it

did not operate to extend the court’s plenary power over its judgment See Id. As the

Texas Supreme Court said in Philbrook, “In addition to being filed timely, the

motion for new trial must be filed in the same cause as the judgment the motion


1
        Appellants were aware of the severance order on July 30, 2015. That order, along with
the order granting summary judgment and the order approving interpleader, was signed by Judge
Alcala on July 30, 2015, following an oral hearing at which counsel for Appellants and counsel
for Compass Bank were present. The courtroom clerk provided copies of the signed orders to
both attorneys and, on the same day, the District Clerk stamped the newly assigned cause
number on the order of severance. See Exh’s B, C. The District Clerk’s “Case Summary”
indicates notice of the severance to counsel on August 4, 2015. See Exh. D. By letter dated
August 7, 2015, referencing both the main and severed case numbers, Compass Bank sent
interpleader funds to the District Clerk with an emailed copy sent to Appellants’ counsel. See
Exh. E.

                                              3
930505.20130509/2288018.1
assails.” Id. (citing Buttery v. Betts, 422 S.W.2d 149 (Tex. 1967); see also Levin v.

Espinosa, 03-14-00534-CV, 2015 WL 690368 at *1 (Tex. App.—Austin Feb. 13,

2015, no pet.).

         The same day the trial court granted Compass Bank’s motion for partial

summary judgment, it also granted the severance, creating a new case with a new

cause number, and styled Jose George v. Compass Bank. Exh. B. By terms of the

severance order, the trial court directed the clerk to place the partial summary

judgment, an order granting interpleader and, “this Order Granting Severance” in the

new case file. Exh. B. The severance order expressly states that the “summary

judgment granted in favor of Compass Bank is now final,” and the “Order of

Severance is final and disposes of the severed case.” Id.2 Similarly, the partial

summary judgment expressly references the “contemporaneously executed severance

order” rendering “this Judgment” final and appealable. Exh. C. Notwithstanding the

clear language and effect of trial court’s orders, Appellants did not file any post-

judgment motion in the severed action (Cause No. 2015-CI-12375) and did not file a

notice of appeal within thirty days after July 30, 2015. Because Appellants did not


2
         The appellate timetable runs from the signing date of the order that makes a judgment
final and appealable. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (citing
Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994)); see also In re K.F.,
351 S.W.3d 108, 112-13 (Tex. App.—San Antonio 2011, no pet.) (“A judgment that disposes of
all parties and issues in one of the severed causes is final and appealable.”) (citing Hall v. City of
Austin, 450 S.W.2d 836, 837–38 (Tex. 1970)). The severed case is the case in which there is a
final judgment; the severance order signed July 3, 2015, commenced running of the appellate
timetable.

                                                  4
930505.20130509/2288018.1
timely invoke this Court’s jurisdiction, their appeal should be dismissed. See

Philbrook v. Berry, 683 S.W.2d at 379; Levin v. Espinosa, 2015 WL 690368 at *2.

         This Court most recently applied Philbrook in Garza v. CMH Homes, a 2002

case. See Garza v. CMH Homes, Inc., 04-01-00845-CV, 2002 WL 31465810, at *2,

note 1 (Tex. App.—San Antonio Nov. 6, 2002, no pet.).3 The Court noted that the

Texas Supreme Court’s holding in Philbrook has been questioned in the perfection-

of-appeal context for purposes of determining whether the appellate deadline is

extended if a motion for new trial is filed in the wrong cause number. See id. The

Court referenced City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992)

(per curiam), and its own 1997 decision in Matlock v. McCormick, 948 S.W.2d 308,

310 (Tex. App.-San Antonio 1997, no pet.). Garza v. CMH Homes, Inc., supra. This

case is distinguishable from both.

         In City of San Antonio, on the deadline for perfecting appeal, the City filed a

post-judgment motion to modify or correct judgment along with its notice of appeal.

The City used the proper style, Abraham Rodriguez and Alicia Rodriguez v. City of

San Antonio, but the wrong cause number on both. In connection with a telephone

inquiry about the “right” case number, a deputy clerk first found no notice of appeal

and no post-judgment motion. On further investigation, she discovered the

3
       See also Luera v. Basic Energy Services, Inc., 04-15-00466-CV, 2015 WL 7271091 at *1
(Tex. App.—San Antonio Nov. 18, 2015, no. pet. h.), granting a similar motion to dismiss
without reference to Philbrook.


                                            5
930505.20130509/2288018.1
instruments filed in the “wrong” case. After discussion with a supervisor, the deputy

clerk drew a line through the wrong number and substituted the correct one on both

instruments. She then contacted the City’s attorneys to notify them of the mistake and

to inform them that the correction had been made and that refiling was not necessary.

See City of San Antonio v. Rodriguez, 828 S.W.2d at 417.

         The court of appeals granted the Rodriguez’s motion to dismiss for lack of

jurisdiction relying on Philbrook. See id. at 418. The Texas Supreme Court

disagreed, writing that “a court of appeals has jurisdiction over an appeal when the

appellant files an instrument that is ‘a bona fide attempt to invoke appellate court

jurisdiction.’” Id. (quoting Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports,

Inc., 813 S.W.2d 499, 500 (Tex. 1991) (per curiam)). The City’s notice of appeal,

filed within 30 days after the judgment, was the basis for appellate jurisdiction in City

of San Antonio. Id.; see also City of San Antonio v. Rodriguez, 810 S.W.2d 405, 406

(Tex. App.—San Antonio 1991), rev’d, 828 S.W.2d 417 (Tex. 1992). Appellants did

not file either a post-judgment motion or a notice of appeal within 30 days of the

summary judgment order or the severance. This separate basis for appellate

jurisdiction—a timely filed bona fide attempt to invoke jurisdiction—is absent from

the instant case.

         Because it found the City’s otherwise timely notice of appeal was sufficient to

give the court of appeals jurisdiction, the Texas Supreme Court “h[e]ld that the City’s


                                            6
930505.20130509/2288018.1
notation of the incorrect cause number on its notice of appeal” did not defeat that

jurisdiction. City of San Antonio v. Rodriguez, 828 S.W.2d at 418.

         Further distinguishing City of San Antonio, it was not a severance case and,

unlike the City, Appellants in this case did not use some totally alien cause number.

They filed their motion to modify in the main case using its caption and its number,

one of three cause numbers associated with this controversy: (i) the main case, (ii) a

2014 severance and final disposition of claims involving “Jose Alberto George,” and,

(iii) the July 30, 2015 severance and final disposition of claims involving Appellants

and Compass Bank. Far more like Philbrook than City of San Antonio, “the different

cause numbers were crucial to the proper management of the [three] cases.” See City

of San Antonio, 828 S.W.2d at 418 (distinguishing that case from Philbrook).

         In the 1997 Matlock v. McCormick case, which is a severance case, this Court

held that Matlock timely perfected her appeal by filing a motion for new trial in the

main case. See Matlock v. McCormick, 948 S.W.2d 308 at 310. The holding is based

on the Court’s rationale that Matlock’s motion for new trial was a bona fide attempt

to invoke appellate court jurisdiction. Id. First, in this case there is no instrument that

can possibly be considered an attempt to invoke this Court’s jurisdiction that was

timely filed within 30 days after July 30, 2015. And, importantly since the Court’s

decision in Matlock, the Texas Supreme Court has made it clear that a motion for

new trial “is not an instrument that may be considered a bona fide attempt to invoke


                                            7
930505.20130509/2288018.1
the appellate court’s jurisdiction.” In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005);

see also In re J.M., 396 S.W.3d 528, 530–31(Tex. 2013) (motion for new trial that

does not address appellate court does not qualify as a substitute for a notice of

appeal). Therefore, because no timely notice of appeal (or other instrument

attempting to invoke the Court’s jurisdiction) was filed, the Court should dismiss the

appeal.

         The most recent decision from any court of appeals on the continuing efficacy

of Philbrook appears to be Levin v. Espinosa from the Austin court. See Levin v.

Espinosa, 03-14-00534-CV, 2015 WL 690368 (Tex. App.—Austin Feb. 13, 2015, no

pet.). There, just like here, “[t]he only question to be answered is whether the [July

30, 2015] motion for new trial, filed in the wrong cause number, acted to extend the

time to file a notice of appeal in the new, severed cause.” Id. at *1. Relying primarily

on Philbrook (see also Texas Emp’rs Ins. Ass’n v. Martin, 347 S.W.2d 916, 917

(Tex. 1961)), the Austin court held that the improperly filed post-judgment motion

did not extend the appellate deadline, and the court dismissed the appeal for want of

jurisdiction. Id. On substantially similar facts, this Court should do the same.

         In deciding to dismiss the appeal for lack of jurisdiction (the same relief

Compass Bank seeks in this case), the Levin court discussed (and distinguished) an

array of post-Philbrook cases that “have muddied the waters in this area.” Levin,

2015 WL 690368, at *2 (discussing Mueller v. Saravia, 826 S.W.2d 608 (Tex. 1992);


                                            8
930505.20130509/2288018.1
City of San Antonio, supra; McRoberts v. Ryals, 863 S.W.2d 450, 451 (Tex. 1993);

and Blankenship v. Robins, 878 S.W.2d 138, 138 (Tex. 1994)). Each is equally

distinguishable from this case.

         For example, in Mueller, the trial court rendered a take-nothing judgment, then

severed Mueller’s claims against Saravia into a new cause number. Mueller, 826

S.W.2d at 609. Mueller filed a timely motion for new trial in the original cause

number seeking new trial in both causes and successfully sought re-consolidation of

the causes. Id. The Texas Supreme Court held that, despite being filed in the original

cause number, the motion for new trial extended Mueller’s appellate deadline in the

severed cause because Philbrook required only that the motion for new trial be filed

in the same cause as the judgment being assailed. Id. The court also noted that the

severed cause number was nowhere to be found in the clerk’s record and that the

parties and the trial court had proceeded as if the severance had not happened,

concluding that Mueller should not be punished for failing to comply with a

severance order ignored by both parties and the trial court. Id. Here, in contrast, the

order of severance includes the newly assigned cause number; the order of severance

specifically references the partial summary judgment signed the same day; and, the

partial summary judgment expressly references the contemporaneously signed order

of severance. See Exh’s B, C. Neither the court nor the parties (other than George)

ignored the severance.


                                            9
930505.20130509/2288018.1
         As discussed above, in City of San Antonio, the appellant timely filed a notice

of appeal, demonstrating “a bona fide attempt to invoke appellate court jurisdiction.”

See City of San Antonio, 828 S.W.2d at 418. In this case, no notice of appeal was

filed within 30 days and, Appellant’s motion to modify “is not an instrument that

may be considered a bona fide attempt to invoke the appellate court’s jurisdiction” as

a matter of now settled law. In re K.A.F., supra. In this case, the erroneous cause

number used by Appellant’s is one of three associated with the controversy, unlike

City of San Antonio where the number had nothing to do with any part of the case.

See City of San Antonio, supra.

         Likewise, McRoberts v. Ryals, 863 S.W.2d 450 (Tex. 1993) is distinguishable

from this case. In that case, the trial court signed a judgment that included a

severance order, but the trial court clerk did not assign a new cause number to the

severed action until two months later. 863 S.W.2d at 451. In the meantime,

McRoberts filed a motion for new trial in the original cause number. Id. About two

weeks after the new number was assigned, McRoberts perfected his appeal under the

original cause number. Id. The supreme court observed that because McRoberts

could not be expected to file his motion for new trial under a nonexistent cause

number, his motion operated to extend his time to appeal. Id. at 454–55. It further

held that McRoberts’s attempt to appeal, filed in the original cause, was proper

because the judgment he sought to appeal was under the original cause number,


                                            10
930505.20130509/2288018.1
noting that notice of the new cause number was not provided to the parties when it

was finally assigned. Id.

         As the Texas Supreme Court held, McRoberts was distinguishable from

Philbrook, supra, (and from Richie v. Ranchlander Nat’l Bank, 724 S.W.2d 851

(Tex. App.—Austin 1986, no writ)), and from Buttery v. Betts, supra. In McRoberts,

a severed cause number “did not exist when the motion was due.” McRoberts v.

Ryals, 863 S.W.2d at 454. In this case, like the cases the court distinguished in

McRoberts, “the severed or separate cause number already existed when the motion

for new trial was due” and Appellants’ counsel—unlike McRoberts—did not “face[]

the impossible dilemma of having to timely file his motion for new trial under a

nonexistent cause number.” McRoberts, 863 S.W.2d at 455. The severed case cause

number is in the severance order; the severance order specifically references the

summary judgment; and, the summary judgment specifically references the

“contemporaneously executed” order of severance. See Exh’s B, C.

         The Blankenship case is completely different from this case. In Blankenship,

the trial court granted summary judgment against Blankenship and ordered that all

remaining claims should be severed into a new cause number. Blankenship v.

Robbins, 878 S.W.2d 138, 138 (Tex. 1994). Contrary to the order, the trial court clerk

instead assigned a new cause number to the summary judgment, leaving the

remaining claims in the original cause. Id. The trial court and parties then proceeded


                                          11
930505.20130509/2288018.1
in accordance with the clerk’s actions, and Blankenship timely filed his motion for

new trial and appeal bond in the severed cause. Id. The Texas Supreme Court held

that Blankenship should not be punished for not complying with a severance order

that was also ignored by Robbins and the trial court and that Blankenship’s filings,

including the appeal bond, in conformity with the clerk’s actions were a bona fide

attempt to invoke appellate jurisdiction. Id. 878 S.W.2d at 139. There is no such

miscommunication in this case. Rather, Appellants, alone, ignored the import of the

severance order signed July 30, 2015. And, as above, there is no timely filed appeal

bond or other filing that can possibly be construed as a bona fide attempt to invoke

this Court’s appellate jurisdiction. See In re K.A.F., supra.

         In Levin, Justice Field joined in the majority opinion and found it appropriate

to write a separate concurring opinion. (Justice Pemberton joined both the majority

and Field’s concurrence). As to the precedential import of Philbrook, Justice Field

first observes, “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.” Levin, 2015 WL

690368, at *3, Field, J., concurring (citing Lubbock Cnty. v. Trammel’s Lubbock Bail

Bonds, 80 S.W.3d 580, 585 (Tex. 2002). Noting the “trend toward putting substance

over procedure” when a court is assessing its jurisdiction, Justice Field, nonetheless,

concurs that recent clarification that a motion for new trial may not be considered a


                                            12
930505.20130509/2288018.1
bona fide attempt to invoke appellate jurisdiction means “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.” Id.

         The reasoning in Levin is sound and, as suggested by Justice Field, Philbrook

governs this case. The final judgment and the contemporaneously signed severance

order are unmistakably clear. Compass Bank obtained summary judgment in its favor

on July 30, 2015. On the same day, all claims disposed of by that judgment were

severed into Cause No. 2015-CI-12375, making the judgment final and appealable.

Despite notice, Appellants did not file a post-judgment motion in Cause No. 2015-

CI-12375. The appellate timetable was not extended and Appellant’s notice of appeal

was due within thirty days. Tex. R. App. P. 26.1. No notice of appeal has been filed

in Cause No. 2015-CI-12375. Further, there is no final judgment in the “main case,”

2014-CI-03773. See In re Thirty-Four Gambling Devices, 07-04-0548-CV, 2006 WL

223749 at *2 (Tex. App.—Amarillo Jan. 30, 2006, no pet.) (“unlike Rodriguez, the

present appeal does not simply fail to correctly identify the cause number of the

judgment being appealed from, rather, it attempts to appeal a judgment that simply

does not exist.) Accordingly, the Court is without jurisdiction in this appeal.

         Compass Bank respectfully moves for dismissal of this appeal for lack of

jurisdiction and for such other relief to which it is entitled.




                                             13
930505.20130509/2288018.1
                            Respectfully submitted,

                            HIRSCH & WESTHEIMER, P.C.

                            By: /s/ Michael D. Conner
                              Michael D. Conner
                              mconner@hirschwest.com
                              State Bar No. 04688650
                              William P. Huttenbach
                              State Bar No. 24002330
                              phuttenbach@hirschwest.com
                              1415 Louisiana, 36th Floor
                              Houston, Texas 77002
                              Telephone: (713) 220-9162
                              Facsimile: (713) 223-9319

                            Attorneys for Appellee Compass Bank




                              14
930505.20130509/2288018.1
                            Certificate of Conference

     I spoke to Alberto Alarcon, on December 18, 2015 and he opposes this
motion.

                                           /s/ Michael D. Conner
                                          Michael D. Conner

                            Certificate of Compliance

     I certify that this document complies with the type-volume limitation of Tex.
R. App. P. 9.4. This document is in a proportionally spaced typeface using
Microsoft Word 2013 with 14 point Times New Roman font.


                                           /s/ Michael D. Conner
                                          Michael D. Conner

                               Certificate of Service
      I hereby certify that on this 18th day of December, 2015, a true and correct
copy of the foregoing document was served as follows:

                                   Alberto Alarcon
                            Hall, Quintanilla, & Alarcon
                                    P.O. Box 207
                                  1302 Washington
                             Laredo, TX 78042-0207
                                    Via E-Service

                                             /s/ Michael D. Conner
                                             Michael D. Conner




                                        15
930505.20130509/2288018.1
                                             Case   No. 04-15-00676-CV

                                   IN TFIE FOURTH COURT OF APPEALS
                                             SAN ANTONIO, TEXAS


                 Jose George, Matilde D. George, and Elaine George, Appellants

                                                          v

                                              Compass Bank, Appellee



                                      Affidavit of William    P. Huttenbach

STATE OF TEXAS                           $
                                         $
COLINTY OF HARRIS                        $


       BEFORE ME, the undersigned authority, on this day personally appeared
'William
         P. Huttenbach, known to me to be the person whose name is subscribed
below, and who, being by me duly sworn, stated the following:
1.          My name is William P. Huttenbach. I am over the age of twenty-one (21)
            years and, I am competent to testiÛz. Each fact stated in this affidavit is true
            and correct and within my personal knowledge.

2.          I am an attorney of record for Compass Bank ("Compass Bank") in the above
            referenced lawsuit, and was lead counsel in the trial court.

3.          Ihave read Compass Bank's Motion to Dismiss for Lack of Jurisdiction to
            which this affidavit is appended. Each fact stated in the motion is true, correct,
            and within my personal knowledge.

4.          Attached to this affidavit are true copies of following documents, each of
            which was obtained from the Bexar County District Clerk:
            Exhibit A - Notice of Appeal filed by Jose George, Matilda D. George,
                                   and Elaine George in Cause No. 2014-CI-03173;



93 05 05.20 I 30509 /228249 0. t
            Exhibit B - Order Granting Severance of All claims By and Between
                                     Compass Bank and Plaintiff, Jose George, and Third-Party
                                     Defendants, Matilda George and Elaine George, signed
                                     July 30, 2015, and entered in Cause No. 2015-CI-12375
                                     on July 30,2015;

            Exhibit C - Partial Summary Judgment on All Claims By and Between
                        Plaintiff and Third Party Defendants Matilda George and
                                     Elaine George and Compass Bank, signed July 30, 2015,
                                     in Cause No. 2014-CI-03773;
            Exhibit D - Notice in Cause No. 2014-CI-03773, notiffing counsel for
                        the respective parties of the severance and the newly
                        assigned cause number and style for the severed matter,
                        Cause No. 2015-CI-12375; Jose George, et al. vs.
                                     Compass Bank.

5           Iattended the July 30,2015, hearing in the Bexar County District Court at
            which Judge Alcala signed the Partial Summary Judgment, Exh. C, and the
            Order Granting Severance, Exh. B. Counsel for Jose George, Matilda D.
            George, and Elaine George, Mr. Alberto Alarcon, also was present.

6           Also attached to this affìdavit as Exhibit E is a true copy of a letter dated
            August 7, 2015, together with true copies of the attachments sent with the
            letter, which I prepared and sent to the Bexar County District Clerk on August
            7 ,2015, with copies of the same sent as indicated thereon, including to counsel

            for Jose George, Matilda D. George, and Elaine George, Mr. Alberto Alarcon.
FURTHER AFFIANT SAYETH NOT

                                                        W,// H,lk
                                                       William P. Huttenbach

            SWORN TO AND                          SCRIBED before me by the said William               P.
Huttenbach on De




                                                       Notary       c in and for the State of Texas


9305 05.20 I 30 509 t228249 0.   1
FILED
101271201512:30:00 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Consuelo Gomez


                                             cAusE No.     2014 -Cr-0377 3


              JOSE GEORGE,                                 ñ       IN THE, DISTRICT COURT
                                                           .J

              V.                                           s       BEX,A.R COUNTY, TE,XAS
                                                           s
              JOSE ALBERTO GEORGE , et                     s       45TH   JUDICIAL DISTRICT
                                       ^1.



                                               NOTICE, OF APPE,AL

             TO THE HONOR A.BLE JUDGE OF SAID COURT

                      Jose George, Matilde   D. George, and Elaine George, appellants, timely file this

             notice of appeal from the f udgment of the Court and related orders     sþed    on July 30,

             201.5,   to wit: Partsal Summary Judgment on All Claims by and Between Plaintiff and

             Third-Patty Defendants Matilde George and Elaine George and Compass Bank and

             Order Granting Compass Bank's Second Motion to Approve Interpleader. Appellants

             also appeal the subsequent order signed on or about September 24,201,5, conditioning

             the withdrawzl of all the funds interpleaded on the posting of a supersedeas bond for

             future attorney's fees.

                      This notice of appeal and appeal encompasses the fìnal judgment       as   well as all

             orders and rulings adverse to the appellants that were incorporated or merged into the

             fìnal judgment and all subsequent advetse ruling dealing with withdrawal of funds and

             supersedeas bond.

                      This appeal is taken to the Fouth Coutt of Appeals in San Antonio, Texas.

             Dated: Octobet    27   ,2015
                                                                                                 EXHIBIT
                                                                                       'o
                                                                                       o
                                                           1                           õ
                                                                                       t
                                                                                       6
Respectfully submitted,
HALL, QUINTANILI,A. &          AI-ARCON,
PLLC

/s/Alberto Alarcon
Alberto Alarcon
   State Bar No. 00968425
7302 Washington
P.O. Box 207
Laredo, Texas 7 8042-0207
Telephone No. (956) 723 5527
Facsimile No. (956) 723 8168
Email aalarcon@sbcglobal.net




   2
                               CERTIFICATE OF SERVICE

      On this 27'h day of October,    201,5, a true and correct copy   of the foregoing

pleading was served on the following by the method described below their name an

address:


SØilliam P. Huttenbach
1 41, 5 Loutsiana, 36ù Floor
Houston, Texas 77002
Via email: phuttenbach@hirschwest. com


                                               /s/ Alberto
                                               Alberto Alatcon




                                           J
                                                2015-CI-12375
                                         O45TH JUI)ITINL DISTRICT        COURT

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                                             ORTE   FILTD ø1/3ø/2Ø15
JOSE GEORGE                                                $                    TN   THE DIS'I'RICT COUIìT'OF
                                                           $
VS.                                                        $                            BEXAR COUNTY,I'EXAS
                                                            $
JOSE AI",BER'|O GEOIIGE, et al.                             $                           45TH   JUDICIAL DIS]'RICT

ORDER GRT{NTING SEVERANCB OI'ALL CLAIMS BY AND BETWEEN COMPASS
  RANK AND PLAINTIFF. JOSE GEORGE. AND THIRD-PARTY DNFENDANTS.
  MATTLDE GEORGE AND ALAINE GEORG}: IPLAINTITF AND TIIIRD-PARTY
 DDFNNDANTS \ryILL BE COLLACTIVELY RTTFERRND TO AS "RASPONDENTSIII

           On this day came on to be hearcl Compass Bank's motion to sever contained in Compass

Bank's Motion tbr Partial Summary Judgment against Respondents. The Coutt, having considercd

the motion on lile and thc arguments of cotnsel, is of the opinion thât said motion should bc

GRANTED. [t is, thereforc,

           ORDERIID that all claims by ard between'l'hird-Party Defendant Clompass Bank d/b/a

BIIVA        Compa.ss,        inconcctly named us BBVA Compass Bank ("Cr)mpsss Brnk")                               and


Respondents be severed from the remaining claims in this matter.

           IT IS FURTHER ORDERED that the remaining claims by and br:tween Plaintifti                               Jose


Gcorge, and the other Defendants, and cross-claims between'l'hird-Party                         Plaintiff   Jose Alberto

George,      ¿urcl   the other patties   will RËMAIN PENDING.
                                                       2Øls-ct-1237s
           The severed matter       will   be Cause No.                          ¿rnd   will   be styled Jose George v"


Compass        Bank. 'the Clerk is directed to create this new file and all claims by and between

Compass Bank and Respontlenls are SEVERED frclrn the remaining claims in this lawsuit.

           All court      costs in connection with the case being severed are to be paicl by Compass Bank.

lhe Cllerk of the court is instructed         to copy the following pleadings to be sevcred and

new file:
                                                                                                               \\$uíi: \$\ \\\t
                                                                     EXHIBIT
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                                                                                                         ,""þ
930505.20t 30509nt 9t6ó2. I
                                                                o
                                                                ó
                             Partial Summary Judgment on all Claims By and Between Compass Ba¡k and
                             Plaintiff and Third-Party Defendants;
                2.           The Court Order granting Compass Bank's Second Motion to Allow Interpleader;
                             and
                3            this Order Granting Severance.

                The Court incorporates by reference all documents in the original          lile.   The Courl also notes

case arühority holding that all documents                  filed in a oil¡se before û severânce are part of the record

of the severed case.                 ,See   New Hampshire Inç. Co, v. Tobias,80 S.ï/.3d 146 (Tex. App. 2002, no

pet.).

                It is ALSO ORDERED THAT thc above-referenced summary judgnrent grantod in favor of

Compass Bank is now final.

                It is ALSO ORDERED THAT the Orde¡ of Severance is final and disposes of the severed

case
                                                          ô?
                Signcd on                                       3    a      20r 5.




                                                               HONORABLE                 PRESIDING

APPROVDD AS TO F'ORM ONLY:

HIRSCH & WESTIIEIMER" P,C.

       /sl William P. Hultenhach
       WiltiamP. Huttenbach
         State Bar No. 24002330
         1415 Louisiana, 36th Floor
       Houston, Texas 77002
       713-220-9184 Direct
       713-223-5181 Main
       713-223-9319 Fax
       Email : phuttenbach@hirschwest.com

ATTORNAYS FOR THIRD-PARTY
DEFENDAIYT COMPASS BANK
DfBtA BBVA COMPASS, TNCORRßCTLY
NAMED 3BVA COMPASS BANK


930505-20   I   t0509/¿ I 93óó2. I
                                    CAUSE NO. 20r 4-Cr-43773

JOSE GEORGE                                      $                  IN THE DISTRICT COURT
                                                 $
vs.                                              $                  BEXAR COUNTY, TEXAS
                                                 $
JOSE ALBERTO GEORGE, et al.                      $                  45TH JUDICIAL DISTRICT

    PARTIAL SUMMARY JUDGMENT ON ALL CLAIMS BY AND BETWEPN
PLAINTIFF AND THIRD-PARTY DEFßNDANTS MATILDE GEORGE AND ELAINE
                    GEORGE AND COMPASS BANK

       On this day came on to be heard Compass Bank's Motion for Summary Judgment against

Plaintiff, Jose George ("Plaintiff') and Third-Party Defendants Matilde George and Elaine George

(collectively "Third-Party Defendants"). For the reasons stated in said motion, this Court grants

a sunrmary judgment in favor of Compass Bank on all of Plaintiff s and Third-Party Defendants'

claims against Compass Bank and all of Compass Bank's claims against such parties'

       IT IS THEREFORE, ORDERED, ADruDGED AND DECREED that Plaintiff                   ANd ThiTd-


Party Defendants shall take nothing on their claims against Compass Bank.

       IT IS ALSO ORDERED, ADJUDGED AND DECREED that                    Compass Bank recover     a


Judgment against Plaintiff and Third-Party Defendants, jointly and severally, in the amount of One

Hundred Thousand, Eight Hundred Thirty-Six and 55/100 Dollars ($100,836.55) for Compass

Bank's reasonable and necessary attorneys' fees, costs and expenses.

        IT IS ALSO ORDERED, ADJUDGED AND DECREED that if PlAintiff                  ANd/Or   Third.

Party Defendants file aNotice of Appeal, and Compass Bank ultimately prevails, Compass Bank

is awarded an additional $30,000.00 for additional reasonable and necessary attorneys' fees, costs

and expenses, and   if   any party appeals to the Texas Supreme Court and Compass Bank ultimately

prevails, Compass Bank is awarded an additional $25,000.00 in additional reasonable and




                                                                           'o
                                                                           .c
                                                                           o
                                                                           .o
                                                                           g
necessary attomeys' fees, costs and expenses, and an additional $20,000.00             if the Texas Supreme

Court grants the writ.

              IT IS ALSO ORDERED, ADruDGED AND DECREED that Compass Bank is awarded

post-judgment interest at the rate of          5%o   per annum on the above-referenced amounts from the date

of this judgment until paid.

              All relief not expressly   granted herein by and between Plairitiff and Third-Party Defendants

and Compass Bank is denied. Due to a contemporaneously executed severance order, this

Judgment finally disposes of all claims by and between Plaintiff and Compass Bank and is

appealable. this is meant to be a Finat Judgment pursuant to the Texas Supreme Court's decision

in Lehmannv. Har-Con                     ,39   S.       I   1   (Tex.2001).

               Signed on                                 &
                                                                              J   PRESIDING

APPROVED AS TO FORM ONLY:

HIRSCH & WESTHEIMER, P.C.


By        /s/ Wílliam P. Huttenbqgll
          WilliamP. Huttenbach
          State Bar No. 24002330
          1415 Louisiana, 36th Floor
          Houston, Texas 77002
          713-220-9184 Direct
          713-223-5181 Main
          713-223-9319 Fax
          Email: phuttenbach@hirschwest.com

ATTORNEYS FOR THIRD-PARTY
DEF'ENDANT COMPASS BANK
D tBt A BBVA COMPASS, TNCORRECTLY
NAMED BBVA COMPASS BANK



                                                                 n
 930   s0s.20l 30 s09 nl 251 1 2.3
                                       No. 2û14CI03773                 ,
                                                                        ilffiffiffiffilllll
                                                                                20r5cr1?375 -s00001

JÛSE GEORGE                                            $               ln the District Court

YS                                                     $               4srH Judicial District

JOSE A GEORGE ET AL                                    $               Bexar County, Texas


August 04,201.5

\ryILLIAM P HUTTENBACH
1415 LOUISIAN.A. ST 36 FL
H0usTûN,TX17û02-?36û

Á.LBERTO ALARCON
r3O2 WASHTNGTON ST
L^4.REDû, TX 7804û-4¡145




                                                  NTTICH

       .4"n   Order of Severance   \ryäs   entered under the above described câuse of action.

       The newly assigned Cause Number and Style of the severed action is listed
below:

       Cause Number 2û15CIf æ75                         Court 45rH

       Style:        JOSE çEORGE #T AL
                     vs.
                     COMFASS BÁ,NK            .




                                                   Donna Kay MsKinney
                                                   Bexar County District Clerk
                                                   San Antonio, Texas 7E2û5



                                                                                    EXHI
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                                                                           "9
                                                                           .o
                                                                                   Ð
                             DOCTJMENT SC"ANNEÐ .AS           FÏLEÐ
                                                              ;nlmgmffiffilllll
                                No.@lf!ffiJ,                  .,     2015CI123?5   --5øø6ø2   "/'


JOSE GAORGE                                   $               In the District Court

VS                                       '$                   45rH J,rdi"ial District

JOSE A GEORGE ET AL                           $               Bexar County, Texas


August 04,2015

1VILLIAM P IIUTTENBACH
1415 LOUISIANA ST 36 FL
HOUSTON,TX77t02.736o

ALBERTO ALARCON
I3O2 \ryASIilNGTON ST
LARBDO, TX 78040-4445



                                     NOTICE

      An Order of Severance was entered under the above described caus€ of action.

      The newly assigned Cause Number and Style of the severed action is listed
below:

      Cause Number 20tSCIl237 5               Court 45t"

      Style:     JOSA GEçBGE ET AL
                 vs.
                 COMPASS BÄ.NK




                                       Donna Kay MsKinney
                                       Bexar County District Clerk
                                       San Antonio, Texas 78205




                          DOCITMENT SC.ANI{ED     AS FTI,ED
   E            I{IRSCH & WË5THËIMËR
                                              i\   i t¿'t   t,¡., ¡. [i'i): i--i.t,   :   :,!:1i.'   /;
                                                                                                                                                    1.713.220.9184
                                                                                                                                                    F.713.223,9319
                                                                                                                                                    phuttenbach@h i rschwest.com



                                                                                                     August 7,2|'j.15

                                                                                                                     Via Certified Mail/RRR
                                                                                             No. 9414 7266 9904 2Ol3 3ll5 OS and Via E-File
          Donna Kay McKinney,
          Bexar County District Clerk
          Paul Elizondo Tower
          1O1 W Nueva, Suite 217
          San Antonio, TX 78205-3411

                     Re:       Cause No. 2Ol4-C\'OO3773: Jose George v. Jose Alberto George,
                               et al.; ln the 45th Judicial District Court of Bexar County, Texas.
                      Re:      Cause No. 2015-Cl-12375; Jose George v, Jose Alberto George, et
                               al.: ln the 45th Judicial District Court of Bexar County, Texas.

          Dear Ms. McKínney:
                Enclosed please find a check in the amount of Seven Hundred Eighteen
          Thousand Seven Hundred Twenty-Nine and 52/1OO Dollars ($718,729,52)
          made payable to Bexar County District Clerk pursuant to the attached Order
          granting Compass Bank's Second Motion to Allow lnterpleader. Pursuant to
          the Order, Compass Bank closed all six (6) accounts, issued a check made
          payable to Conipass Bank in the amount of One Hundred Thousand Eight
          irunoreo rhirty-Six and 55/oo Dollars ($100,836.55), and Compass Bank has
          kept that original check. I am also enclosing a copy of that check for the
          Court's file. Rlso in compliance with that Order, Compass Bank then has
          issued a check for the remaining balance of the remaíning accounts and has
          províded it to you.
               I am copyíng all parties on this letter to notify them of Compass Bank's
          compliance with said Order.




                                                                                                                                                                       EXHIBIT
                                                                                                                                                                  tô
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                                                                                                                                                                  '9




                               141ó   1-orisiå'1ð 3ljtil iÏloÞr                       il¡)LrsiÐil, 'l-ex¿s   7700â   1, '/l:! 22-3   t:;l91   Ì¡irschv¿esír:ant

93050s.20r30509Æ 1945s1.   I
Donna Kay McKinney
August 7,2c-15
Page 2



        lf you have any other questions or comments, please do not hesitate to
call.
                                        Sincerely,

                                        HrRscx & WEsrxEt¡¿eR, P,C.


                                        By
                                             W liam "Pat" Huttenbach

WPH/bd/enclosure
cc:     Jose Alberto George, Pro Se              Via emailand U.S. Priority Mail
        Alberto Alarcon                                             Via email
        James G. Ruiz                                               Via email
                                              CAUSE NO, 2014 -Cr-037 7 3

JOSE GEORGE                                                 $                   IN THE DISTRICT COURT
                                                            $
VS.                                                         $                   BBXAR COUNTY, TEXAS
                                                            $
JOSE ALBERTO GEORGE, et al"                                 $                  45TH JUDICIAL DISTRICT

                                      ORDER GRANTING COMPASS BANK'S
                                  ËDCOND MOTION TO APPROVE INr.nrìp[,AADnR

          On this date, came on to be heard, Cornpass Bank's Second Motion to                       Approve

Interpleacler. The Court GRANTS the motion and FINDS the following:

          L               On or about April 28,2014, each of the accounts contained the following posted

amounts:

                                    Account No. {'*t8164, styled in the name of Jose George, posted balance
                          ^,        as of April 28,2Q14 Tbree Thousand Ninety'Six and 451100 Dollars
                                    ($3,096.45);

                           b.       Account No. 'rr*'i9000, styled in the name of Jose George, posted balance
                                    as of April 28,2014: Tlree Thousand Four Hundred Thi*y'Eight and
                                    50/100 ($3,438,50);

                           c.       Account No, ¡¡**9840, styled   in the name of Matilde Diaz De George,
                                    posted balance as of April 28,2014: Five Hundred Ttree Thousand Four
                                    Hundred Ninoteen and 3 7/1 00 Dollars ($503,4 I 9. 3 7) ;

                           d.       Account No, r'r"r'9395, styled in the name of MatildE D' George, posted
                                    balance as of April 28,2014: Twenty Five Thousand Two and 99/100
                                    Dollars (fi25,002,99);

                           e,       Account No. *:r'*7770, styled in the name of Elaine George, posted
                                    balance as of April 28, 2Al4t Two Hundred Fifty-One Thousand Six
                                    Hundred Twenty-One and 891100 Dollars (825I,62L.89); and

                           f.       Aocount No, +r'*7290, styled in the name of Elaine Oeorge, posæd
                                    balance as of Apríl 28,2014t Thirty Thousand Four Hundred Sixteen and
                                    69/100 Dollæs ($30,4 1 6.69).1




I     Compass Bank previously had account nos, xxx9360, xxx0920, and xxx2094 but thoso acsounts have ro funds
      remaining ín thc account and/or havs been closed.


930505.20130509/2   I   93621.1
Said amounts may have changed slightly due to interest, outstanding items, and/or routine bank

charges, such as monthly charges or early termination penalties,

            2,            The parties have represented that no other party could claim to be entitled to the

funds in dispute and/or a portion thereof.

            IT IS THEREFORE ORDERED, ADJUDGED andDECREED                              as   follows:

            3.            Within twenty (20) days of being presented with a signed copy of this         Order,

Compass Bank shall retain the amount of One Hundred Thousand, Eight Hundred Thirty-Six and

55/100 Dollars ($100,836,55) as its reasonable and necessary attorneys' fees, costs and expenses.

            4,            Compass Bank     will then close all of the above-referenced accounts (account
numbers xxxxxx8164, xxxxxx9000, xxxxxx9840, xxxxxx9395, xxxxxx7770, and xxxxxx7290)

and interplead the remaining amounts in all of the accounts into the registry of the Court, less

Compass Bank's attomeys' fees awarded herein. Said amount to be interpleaded may change

slightly due to interest, outstandíng itemsn andlor routine bank charges, such as monthly charges

or early termination penalties.

             5.           Compass Bank is discharged of any and all liability,   if   any, to Jose George, Jose

Alberto George, Matilde Diaz George alWa Matilde George, Elaine George and Fanny

Fenrandez Zacaúas with respeot to Account Numbers xxxxxx8164, xxxxxx9000, xxxxxx9840,

xxxxxx9395, xxxxxx7770, and xxxxxx7290), any checks deposited into the accounts, and/or

with respect to any other issues relating to the funds in the accounts, ffiy prior deposits into

and/or disbursements from said accounts and/or the fr¡nds that were deducted from Third-Party

Plaintiffs âccount and all alleged forgeries related thereto, After tendering the above                 monies

into the registry of the Court, Compass Bank is dismissed with prejudice from this lawsuit.




                                                           2
930505.20 I ^10i09/2 19362 r.   r
            6.          Nothing in this Order affects claims by and between the other parties regarding

the amounts deposited into the Registry of the Courts (less Compass Bank's fees and costs), and

the remaining parties are able to bring claims against each other (and not Compass Bank)

regarding such facts and/or the parties can try to claim such flnds.

            7,          This Order does not affect any other accounts the parties may have with Compass

Bank and nothing in this Ordor would prevent other parties from doing future banking activity

and/or transactions as allowed under applicable law, such as opening new accounts and/or doing

other transactions pursuant to cunently open unrelated accounts.

            8.          Compass Bank    will   no longer be a party to this proceeding as it is being dismissed

with prejudice. The remaining parties are now free to rnake claims to the funds that have been
                                                                I
interpleaded and/or make other claims by and between the remaining parties.

            Signed      ,hi"%#y of                                                2015.
                               .3dË'-

                                                         HONORA-BLE ruDGE PRESIDING




                                                            3
930505.20 I 30509/2t 93ó21.!
APPROVED AS TO FORM AND STIBSTAFTCE:

HIRSCH & VI/ESTI{EIMER" P.C.

           /s/ Ílilltam P. Huttcnhach
     WilliamP. Huttenbach
     State Bar No . 24002330
     Aaron E. Homer
     State Bar No. 24057908
     1415 Louisiana, 36h Floor
     Houston, Texas 77002
     Telephone: Q 13) 223-SL8l
     Facsimile: Q 13) 223 -9319
     Email  phuttenbach@hirschwest.com
     Email: alromer@hirschwest,com

ATTORNEYS F'OR TIIIRI}-PARTY
DEFEDIDANT COMPASS BANK
DlBl       COMPASS, INCORRECTLY
NAMED^BBVA
        BBVA COMPASS BAFTK




                                         4
930505,201 30J09i2193621. I
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       ßBVA CcmPass                                                 CþIËOUE ÞE CAJA
                                                                                                                                         6r-1   1gûlc

                                                                                        Date/Fecha       0s/0ô2015                136

                                                 CLERK
                           BEXAR COUNÎY BISTRICT                                                         **-$718,729.52'**
         PAY
         TO THE
         ORDER OF
         Ë;ciË;þt           este cheque a lo orden de

                   'r'   sEvEN HUNDRED EIGHTEEN THOy!.4¡lo^:* AND s2 GENrs         *'
                   '-    sÉvEN *u*o*'ó   iiÈÑilNIÑIDoLLARS


                                              BBVACOMPASSBANK
               Remitter/Remitente:-. cASE No' 20                 -cr-037 73                                                                ip
               öä;ïìì;i'ö;7 ó åscr pció n :
                                                         1   4
                                    i

                                                                                                                 I;iq[44   AUlÓFi?AÛÀ

               i
                           r,50?f?5?ÊOil' r:oËe00rlåËt: t5¡ Sgtl
                                                                                                  ¡rr'




                                                             sAJ;JJ.Ïit',$ Siiå9"i¡i ?ü$*                           5t?37575s
       BBVACompass
                                                                    C¡'IÊQUA ÐH C¡\JA                                                    ôr-11&4$-2û

                                                                                        Date/Fecha:      08/0612015               136
         pAy               COMPASS BANK
         TO THE                                                                                          *.*   $1oo,8s6.ss
                                                                                                                                  ,,**
         ORDER OF
         Paguese por este cheque a lo orden de
                   ."    ONF HUNDR€D THOUSAND       "'                        *"
                   '-    EIGHT HUNÐRED THIRTY SIX DOLLARS AND 55 CENTS



            Remitter/Rernitente:              BBVA COMPASS BANK
            Description/Descripción       :   cAsE NO.2014-Cl-03773
                                                                                                                                          P
                                                                                           AU¡ÉC}ñIZãO                 A! rcqizÀDÂ



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