                                                                                                  ACCEPTED
                                                                                              04-15-00342-CV
                                                                                  FOURTH COURT OF APPEALS
                                                                                       SAN ANTONIO, TEXAS
                                                                                         9/25/2015 3:40:18 PM
                                                                                               KEITH HOTTLE
                                                                                                       CLERK

                                No. 04-15-00342-CV

                                                                         FILED IN
                        IN THE COURT OF APPEALS                   4th COURT OF APPEALS
                                                                   SAN ANTONIO, TEXAS
                        FOURTH JUDICIAL DISTRICT
                                                                  9/25/2015 3:40:18 PM
                           SAN ANTONIO, TEXAS
                                                                    KEITH E. HOTTLE
                                                                          Clerk

        VILLA DIJON CONDOMINIUM ASSOCIATION, INC. AND
                IMPLICITY MANAGEMENT COMPANY

                                                     Appellants
                                          v.

                   MARY WINTERS AND MILA CHEATOM

                                                     Appellees


  APPELLANTS' RESPONSE TO THE COURT'S SEPTEMBER 15, 2015
                  ORDER TO SHOW CAUSE


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:

      Appellants, Villa Dijon Condominium Association, Inc. (hereafter ''Villa

Dijon") and Implicity Management Company (hereafter "Implicity"), file this

response to the Court's September 10, 2015 order that Appellants show cause in

writing as to why this appeal should not be dismissed for want of jurisdiction. In

support of this response, Appellants will show this honorable court as follows:

                                    Introduction

      As the Court correctly noted in its order to show cause, "absent a timely filed

motion that would extend the deadlines to file a notice of appeal, Appellants' notice


                                           1
of appeal in cause number 2015CI03926 was due on April 8, 2015." In this case,

however, Appellants timely filed a motion for new trial and made a bona fide attempt

to invoke appellate jurisdiction on April 6, 2015, thereby extending the deadline for

the notice of appeal under Texas Rule of Appellate Procedure 26.1 to June 7, 2015.

Due to this extension, Appellants' notice of appeal was timely filed on June 3, 2015

and as such, this Court has jurisdiction over this appeal. As a result, this appeal should

not be dismissed for want of jurisdiction.

                                 Factual Background

      On l\farch 9, 2015, the trial court granted Plaintiffs a default judgment against

Villa Dijon and Implicity, who were two of five Defendants in cause number 2015-

CI-00148. (CR 10) The trial court then severed the defaulted judgment against Villa

Dijon and Implicity into a new cause number, 2015-CI-03926. (CR 14-15)

      On April 6, 2015, Appellants/Defendants timely filed a motion to set aside

default judgment and for a new trial containing both the original and severed cause

numbers in the motion's caption and set it for hearing on April 10, 2015. (CR 38, 2

RR 1) Appellees/Plaintiffs received notice of this motion and responded. (CR 56)

On April 10, 2015, the trial court held the hearing on the motion to set aside the

default judgment and for a new trial at which counsel for the parties appeared and

argued the merits of the motion. (2 RR 9-28) At the hearing, the trial court granted

the motion to set aside the default judgment and for a new trial. (2 RR 28)




                                             2
      On April 10, 2015 after the hearing, Defendants' counsel sent Plaintiffs'

counsel a proposed order. Instead of approving the order, Plaintiffs/ Appellees filed a

motion for rehearing and motion to deny entry of order granting new trial in the

severed cause on April 13, 2015. (CR 63) In this motion for rehearing, Appellees

alleged for the first time that the trial court did not have jurisdiction to set aside the

default judgment because the motion for new trial was not filed in the severed cause

without any further explanation or supporting documentation even though the parties

had a file marked copy of the motion to set aside default judgment and for a new trial

bearing both the original and severed cause numbers. (CR 38, 63) While Appellees

filed their motion for rehearing three days after the hearing on the motion for new

trial on April 10, Appellees did not set this motion for rehearing until April 30, 2015.

(CR 66) This date was more than two weeks after the motion was filed and a week

after Appellants' deadline to file a motion for extension of time to file a notice of

appeal had the notice of appeal been due on April 8, 2015 (30 days after the default

judgments).

       Villa Dijon and Implicity responded to the motion for rehearing and

contended that among various grounds, the failure to file the motion for new trial in

the severed cause was a result of a mistake of the district clerk, which the trial court

could correct under the Texas Rules of Civil Procedure. (CR 146, 149) In two days of

hearings on April 30 and 1\fay 1, 2015, the trial court did not correct this mistake and

believed it did not have jurisdiction over the severed cause at the time of the hearing

                                            3
on the motion to set aside default judgment and for a new trial on April 10. (3 RR, 4

RR 15) The trial court then orally vacated its previous ruling on the motion to set

aside the default judgment and for a new trial. (4 RR 17) The trial court also believed

that it did not have any jurisdiction to even sign an order (4 RR 15), but mentioned

that it believed that the appellate court would have jurisdiction. (4 RR 15)

       Appellants then filed their notice of appeal on June 3, 2015 (CR 151), 85 days

after the default judgments, but within the ninety days provided by Rule 26.1 of the

Texas Rules of Appellate Procedure.

                             Arguments and Authorities

       It is undisputed that under Rule 26.1 of the Texas Rules of Appellate

Procedure, a timely filed motion for new trial extends the deadline to file a notice of

appeal. See TEX. R. APP. P. 26.1. Numerous courts have also held that filing a motion

for new trial or notice of appeal in the wrong cause number after a case has been

severed will invoke the court's appellate jurisdiction. City of San Antonio v. RodrigtteZ;

828 S.W.2d 417, 418 (Tex. 1992)(An incorrect cause number does not defeat

jurisdiction if the instrument is a bona fide attempt to invoke jurisdiction.); Blankenship

v. Robins, 878 S.W.2d 138, 139 (Tex. 1994); Hernandez v. Koch lvlachinery Co., 16 S.W.3d

48, 56 (Tex. App.-Houston [1st Dist.] 2000, pet. denied); Texas G & S Investment, Inc.

v. Constellation Newenergy, Inc., 459 S.W.3d 252, 257, 2015 WL 10207381, (Tex. App.-

Houston [14th Dist.] :March 5, 2015; Leal v. City of Rosenberg, 17 S.W.3d 385, 386 (Tex.

App.-Amarillo 2000, order) (holding that timely motion for new trial filed under

                                            4
original cause number extended time to file notice of appeal in severed cause.) These

cases are all consistent with the more modern approach of deciding cases on the

merits, rather than technical or procedural glitches.

      In this case, it is undisputed that on April 6, 2015 (28 days after the default

judgments), Appellants filed a motion to set aside default judgment and for a new trial

that contained both the original case number and the severed cause number in the

motion's caption on April 6, 2015. (CR 38) Appellees now contend that because the

motion was not technically filed in the severed cause, the motion for new trial should

be ignored both substantively and procedurally, even though they were not harmed.

Appellees clearly had notice of the motion, responded to the motion, appeared at the

hearing on the motion, and argued the motion on the merits. (CR 56, 2 RR 9-28)

      Appellants contend that their motion to set aside default judgment and for a

new trial was or should have been deemed properly filed. The file-stamped copy of

the motion contains the cause numbers for both the original and severed cases. (CR

38) Rule 21(£)(11) of the Texas Rules of Civil Procedure prevents a clerk from

refusing to file a document. If the document fails to conform to Rule 21, the clerk

must identify the error to be corrected and provide a deadline for submitting the

conforming document. In this case, the clerk filed the document containing both

cause numbers and never sent Defendants any notice that the dual cause numbers did

not conform to the rules or that the document was not filed in both cases. Due to the




                                            5
potential for computer glitches with electronic filing, Rule 21(£)(6) of the Texas Rules

of Civil Procedure specifically provides:

        Technical failure. If a document is untimely due to a technical failure or
        system outage, the filing party may seek appropriate relief from the
        court. If the missed deadline is one imposed by these rules, the filing
        party must be given a reasonable extension of time to complete the
        filing. (TEX. R. Crv. P. 21(£)(6))

        In its response to the motion for rehearing and at the second day of hearings

on Appellees' motion for rehearing, Appellants sought relief under these rules from

the trial court. (CR 149, 4 RR 12-13) Both the affidavit and the testimony of Ofelia

Lisa Hernandez (Appellants' counsel's secretary) demonstrate that she attempted to

electronically file the motion in both the severed and original cause numbers, but she

was prevented from electronically completing the task by the electronic filing system.

(CR 14 7, 3 RR 18-19) (The affidavit ofNls. Hernandez will be sttpplied in a supplemental clerk's

record since the district clerk did not inclttde the exhibits to Defendants' response to Plaintiffs' motion

for rehearing.) During a telephone conversation with the district clerk's office, l\t!s.

Hernandez asked the district clerk to file the motion in the severed case since she was

having difficulty doing so on the e-filing system since the case had been closed. The

district clerk, who had the document on her screen since it had been filed in the

original cause number, told Ms. Hernandez that she would file it in the severed cause

and thereafter sent Ms Hernandez a file marked copy. (CR 38, 147, 3 RR 20-21) The

district clerk, however, failed to file the motion in the severed case. Despite this

evidence and the directives of Rule 21, the trial court erroneously refused to give

                                                    6
Appellants the mandatory extension to complete the filing of the motion to set aside

default judgment and for a new trial in the severed cause.

          At the very least, Appellants made a bona fide attempt to invoke appellate

court jurisdiction so this appeal should not be dismissed. In Philbrook v. Berry, 683

S.W.2d 378 (Tex. 1985), the Texas Supreme Court previously held that a motion for

new trial filed in the wrong cause does not extend the appellate time tables. However,

"the Texas Supreme Court has all but expressly overruled the decision" and that

opinion has been "distinguished, explained, and questioned on several occasions"

Leal, 17 S.W.3d at 386; Hernande=?; 16 S.W.3d at 56.

          "Since Philbrook, that Court has consistently admonished that appellate

decisions should turn on 'substance' instead of 'technicality' and that so long as the

appellant's efforts constituted a 'bona fide' attempt to invoke appellate jurisdiction

[Courts] should construe them as successful." Leal, 17 S.W.3d at 386 (citing

Blankenship v. Robbins, 878 S.W.2d 138. 138-139 (Tex. 1994); City    of San Antonio   v.

RodrigtteZ; 828 S.W.2d 417, 418 (Tex. 1992); Mmller v. Saravia, 826 S.W.2d 608, 609

(Tex. 1992)). "Given this admonishment, courts now hold that filing a timely motion

for new trial under the wrong cause number or in the wrong case evinces a bona fide

attempt to invoke appellate jurisdiction when no one is confused about or mislead as

to the judgment in question." Leal, 17 S.W.3d at 386 (citing Rodrigt1eZ; 828 S.W.2d at

418; Matlock v. McCormick, 948 S.W.2d 308, 310 (Tex.App.-San Antonio 1997, no

pet.)).

                                            7
       Here, Appellees have not contended that they were confused about, mislead, or

somehow harmed by the filing of Appellants' motion to set aside default judgment

and for new trial. They cannot as they responded to the motion, appeared at the

hearing, and argued the motion for new trial on the merits. (CR 56, 2 RR 9-28) They

are merely trying to take advantage, yet again, of a technical error. 1

       In a similar case, this Court echoed Lea!s analysis of the Philbrook decision in

Matlock v. McCormick, holding:

       Since deciding the Philbrook decision, the Supreme Court has questioned
       the soundness of its holding, and has reminded appellate courts that
       decisions should turn on substance rather than procedural technicality.
       The Supreme Court has also determined that an appellate court has
       jurisdiction over an appeal when the appellant files an instrument that is
       "a bona fide attempt to invoke appellate court jurisdiction." If there is
       no suggestion of confusion regarding which judgment the appellant
       appeals, the misnumbering should not defeat the appellate court's
       jurisdiction.

lvlatlock, 948 S.W.2d at 310 (internal citations omitted). In Matlock, like this case, the

motion for new trial was filed under the original cause number rather than under the

severed cause number and the appellee argued that the "misnumbering" of the



1
  Appellants find it convenient that Appellees filed their motion for rehearing almost immediately
after the hearing on the motion for new trial contending that the trial court did not have jurisdiction,
but did not set their motion for rehearing for a hearing until weeks after it was filed. This delay
conveniently set the hearing after Appellants' deadline to file a motion for extension of time to file a
notice of appeal had it been due 30 days after the default judgment. Was this done in an attempt to
deprive this Court of jurisdiction? Any such gamesmanship is not within the spirit of the Supreme
Court's admonishment and should not be rewarded. Appellees should also not be rewarded for their
failure to bring to this court's attention the case law that was contrary to the position they took in
their motion to dismiss for want of jurisdiction in this Court. Appellees were well aware of some of
this case law since it was contained in Appellants' response to Appellees' motion for rehearing in the
trial court (See CR 148), but have seemingly ignored it. They certainly did not try to distinguish it.

                                                   8
motion for new trial failed to invoke this Court's appellate jurisdiction. Id. This Court

found, however, that the motion for new trial referred only to the summary judgment

in that case, that the "misnumbering" caused no confusion, and that the appellant

timely perfected his appeal. Id.

       Here, there is no confusion since the motion to set aside default judgment and

for new trial included both cause numbers on its face. Appellees were able to respond,

appear, and argue on the merits of the motion. (CR 56, 2 RR 9-28) Like in Matlock,

this Court should find that Appellants timely perfected this appeal and should not

dismiss for want of jurisdiction.

       WHEREFORE, PREMISES CONSIDERED, Appellants request that the

court hold that Appellants timely perfected their appeal, deny Appellees' motion to

dismiss, and award Appellants such other relief as may be proper.

                                                Respectfully submitted,

                                                Loree & Lipscomb
                                                The Terrance at Concord Park
                                                777 E. Sonterra Blvd., Suite 320
                                                San Antonio, Texas 78258
                                                Telephone: (210) 404-1320
                                                Facsimile: (210) 404-1310



                                                By:
                                                      Robert W. Loree
                                                      State Bar No. 12579200
                                                      Email: rob@lhllawfirm.com

                                                Attorney for Appellants

                                            9
                         CERTIFICATE OF SERVICE

      I hereby certified that on September 25, 2015, Appellants served a true and
correct copy of this response on counsel for Appellees, Jacob S. Leibowitz, 700 North
St. Mary's Street, Suite 1750, San Antonio, Texas, b facsimile transmission to (210)
                                                    1


225-2567.




                                         10
