                                                                                         ACCEPTED
                                                                                     04-15-00342-CV
                                                                         FOURTH COURT OF APPEALS
                                                                              SAN ANTONIO, TEXAS
                                                                               11/11/2015 4:25:29 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        11/12/2015 4:25:29 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


                             On Appeal from the
                166th Judicial District of Bexar County, Texas
                         Cause No. 2015-CI-03926


                            APPELLANTS’ BRIEF


                                                Robert W. Loree
                                                State Bar No. 12579200
                                                LOREE & LIPSCOMB
                                                777 East Sonterra Blvd., Ste. 320
                                                San Antonio, Texas 78258
                                                Telephone: (210) 404-1320
                                                Facsimile: (210) 404-1310

                                                ATTORNEY FOR APPELLANTS



                      ORAL ARGUMENT REQUESTED



                                      i
                    IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:                         Villa Dijon Condominium Association, Inc. and
                                    Implicity Management Company 1

Appellants’ Counsel:                Robert W. Loree
                                    State Bar No. 12579200
                                    Todd Lipscomb
                                    State Bar No. 00789836
                                    Cassandra Pruski
                                    State Bar No. 24083690
                                    LOREE & LIPSCOMB
                                    777 E. Sonterra Blvd., Suite 320
                                    San Antonio, Texas 78258
                                    Telephone: (210) 404-1320
                                    Facsimile: (210) 404-1310

APPELLEES:                          Mary Winters and Mila Cheatom

Appellees’ Counsel:                 Jacob S. Leibowitz
                                    State Bar No. 24066930
                                    LEIBOWITZ LAW FIRM PLLC
                                    700 N St Mary’s St, STE 1750
                                    San Antonio, Texas 78205

TRIAL COURT JUDGE:                  The Honorable Stephani Walsh
                                    District Judge of the 45th District Court
                                    Bexar County Courthouse
                                    100 Dolorosa
                                    San Antonio, TX 78205




1
   Appellants will be referred to in this brief in short form individually as “Villa Dijon” and
“Implicity.”



                                              ii
                                             TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .................................................................. ii
TABLE OF CONTENTS ................................................................................................... iii
INDEX OF AUTHORITIES ............................................................................................. iv
    Cases ............................................................................................................................ iv
    Rules ............................................................................................................................ iv
RECORD REFERENCES................................................................................................... v
STATEMENT OF THE CASE .......................................................................................... 1
ISSUES PRESENTED ......................................................................................................... 2
STATEMENT OF FACTS .................................................................................................. 2
SUMMARY OF THE ARGUMENT ................................................................................. 5
ARGUMENT AND AUTHORITIES ............................................................................... 6
     I. Standard of Review.............................................................................................. 6
          II. The trial court erred in determining that it lacked plenary power to grant
              Appellants’ motion for new trial. ....................................................................... 7
          III. The Court erred in refusing to grant Appellants a reasonable extension of
               time to complete filing under Rule 21(f)(6) of the Texas Rules of Civil
               Procedure. ........................................................................................................... 11
          IV. Conclusion .......................................................................................................... 13
CERTIFICATE OF COMPLIANCE .............................................................................. 14
CERTIFICATE OF SERVICE ......................................................................................... 14
INDEX TO APPENDIX ................................................................................................... 15




                                                                   iii
                                          INDEX OF AUTHORITIES

Cases

Aziz v. Waris, 2015 WL 5076295
  (Tex.App.— Houston [1st Dist] Aug. 27, 2015, no pet.) ............................................. 6

Biffle v. Morton Rubber Indus., Inc., 785 S.W.2d 143 (Tex.1990) ....................................... 7, 8

Cappetta v. Hermes,
   222 S.W.3d 160 (Tex.App.—San Antonio 2006, rehearing overruled) .................. 12

Jamar v. Patterson, 868 S.W.2d 318 (Tex.1994) .................................................................... 7

Methodist Hospitals of Dallas v. Corporate Communicators, Inc.,
   806 S.W.2d 879 (Tex.App.—Dallas 1991, writ denied) ............................................ 11

Reed v. Marmaxx Operating Corp.,
    No. 4:14-CV-10, 2015 WL 123951 (E.D. Tex. Jan. 7, 2015) ..................................... 6

Rosedale Partners, Ltd. v. 131st Judicial District Court, Bexar County,,
   869 S.W.2d 1643, 646 (Tex. App.—San Antonio 1994, no pet.).............................. 12

Strong v. Jackson,
    2005 WL 1458074 (Tex. App.—San Antonio June 22, 2005, no pet.) .................... 12

Warner v. Glass, 135 S.W.3d 681 (Tex.2004) ................................................................... 7, 8,

Rules

TEX. R. APP. P. 9.4(i) ............................................................................................................ 14

TEX. R. CIV. P. 1 ................................................................................................................... 10

TEX. R. CIV. P. 21 ............................................................................................................... 5, 8

TEX. R. CIV. P. 21(f)(5) .................................................................................................... 8, 13

TEX. R. CIV. P. 21(f)(6) ..................................................................................... 2, 6, 7, 11, 13




                                                                  iv
TEX. R. CIV. P. 21(f)(11) ........................................................................................................ 8

TEX. R. CIV. P. 21(f)(13) ........................................................................................................ 8

TEX. R. CIV. P. 329b ......................................................................................................... 7, 11


                                           RECORD REFERENCES

The record references used throughout Appellants’ Brief are the following:

CR _                Clerk's Record

SCR _               Supplemental Clerk's Record

1 RR _              Volume one of the Reporter's Record

2 RR _              Volume two of the Reporter's Record

3 RR _              Volume three of the Reporter's Record

4 RR _              Volume four of the Reporter's Record

5 RR _              Volume five of the Reporter's Record




                                                                 v
                          STATEMENT OF THE CASE

Nature of the case:

       Plaintiffs/Appellees, Mary Winters and Mila Cheatom, who are condominium
owners, brought suit against Defendants/Appellants, Villa Dijon Condominium
Association, Inc. and Implicity Management Company, for breach of contract and
negligence for failing to make foundation repairs to Plaintiffs’ condominiums. (CR 1-
9) Villa Dijon is a condominium association, who hired Implicity, a management
company, to manage that association and the condominium complex. (CR 1-9)

The Default Judgment:

        Winters and Cheatom filed suit on January 6, 2015. (CR 1-9) Appellants failed
to answer timely. On March 9, 2015, Plaintiffs took a default judgment against Villa
Dijon and Implicity. (CR 10-15) The order granting the default judgment also severed
the case against Appellants into a new cause number to make the default judgment
final. (CR 14-15)

The Motion for New Trial:

      Within 30 days of this default judgment, Appellants filed a motion for new trial
on April 6, 2015 and set it for a hearing on April 10, 2015. (CR 38) On the day of the
hearing, Appellees filed a response to the motion for new trial. (CR 56) At the April
10 hearing, the trial court heard each party’s argument, considered their evidence, and
then granted Villa Dijon’s and Implicity’s motion for new trial on the record and
notated this granting of the motion in her judge’s notes for the hearing. (2 RR 11, 2
RR 19, SCR 44)

The Motion for Rehearing:

        On April 13, 2015, Appellees filed a motion for rehearing and motion to deny
entry of order granting new trial alleging that the district court did not have plenary
power and jurisdiction to decide the motion for new trial. (CR 63) Appellees set the
hearing on this motion for April 30, 2015. (CR 66) Appellants responded claiming the
district court did have jurisdiction as the motion was timely filed, or alternatively,
requesting that the district court order the motion timely filed pursuant to Rule
21(f)(6) of the Texas Rule of Civil Procedure. (SCR 1) After holding two days of
hearings on Appellees’ motion, the district court determined it did not have plenary
power to grant the motion for new trial. (4 RR 17) Appellants filed their notice of
appeal on June 3, 2015. (CR 151)


                                          1
The Fourth Court’s Show Cause Order:

       On September 28, 2015, Appellees filed a motion to dismiss Appellants’ appeal
claiming that the Fourth Court lacked jurisdiction to consider this appeal. On
September 10, 2015, the Fourth Court issued a show cause order to Appellants on the
jurisdictional question raised by Appellees. On September 25, 2015, Appellants
responded to this show cause order. In an October 1, 2015 order, the Fourth Court
held that it had jurisdiction of this appeal and that the Bexar County District Clerk
made an apparent error in not filing Appellants’ motion for new trial in the severed
cause number.

                                ISSUES PRESENTED

1) The trial court erred in determining it lacked plenary power to enter an order on
Villa Dijon’s and Implicity’s motion for new trial because the motion for new trial was
timely filed.

2) If the motion for new trial was not timely filed, the trial court erred in refusing to
order that the motion was timely filed pursuant to Rule 21(f)(6) of the Texas Rule of
Civil Procedure, which mandates that the trial court allow Appellants an extension of
time to file due to technical filing error in the district court’s electronic filing system.

                              STATEMENT OF FACTS

       Appellees are two individuals who purchased condominiums in the Villa Dijon

Condominium complex. (CR 1-9) They claim that the slab foundation under their

condominiums is defective, that Villa Dijon and Implicity have a contractual and

common law duty to repair the foundation under their units, and that Villa Dijon and

Implicity breached that duty by failing to repair the foundation. (CR 1-9)

       Ms. Winters and Ms. Cheatom filed suit on January 6, 2015 alleging breach of

contract and negligence against Villa Dijon and Implicity. (CR 1-9)             Appellants’

registered agent, Jody Marquez, received service on January 23, 2015. (SCR 13) Her

office forwarded the citations to the insurer’s agent, Commercial Insurance Solutions,


                                             2
shortly thereafter as was her usual course of business when sued was served. (SCR 13)

The insurer’s agent then mistakenly forwarded the citations to York Risk Services

Group, Inc., a third party administrator, instead of Hiscox, the applicable insurance

carrier. (3 RR 8-11, 14-16, 20-25) As a result, Hiscox was not notified and did not

answer on behalf of Implicity and Villa Dijon. (3 RR 7-8, 9-10, 21)

      On March 9, 2015, the trial court granted Plaintiffs a default judgment against

Villa Dijon and Implicity, who were two of the five Defendants in the original case

No. 2015-CI-00148, and then severed the claims against Villa Dijon and Implicity into

a new cause number, 2015-CI-03926. (CR 10-15) On April 6, 2015, Appellants timely

filed a motion for new trial bearing both the original and severed cause numbers. (CR

38, 2 RR 1) During the filing of the motion for new trial, Appellants attempted to file

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

prohibited from electronically filing into the severed case as the case was closed in

error by the Bexar County District Clerk’s office. (SCR 6-7, 3 RR 19, 5 RR 274)

      Appellants’ counsel’s legal secretary, Lisa Hernandez, contacted the clerk’s

office who led her to believe the motion would be filed in both cause numbers. (SCR

6-7, 3 RR 19-22) Shortly after the phone call, Mrs. Hernandez received an email

confirmation attaching a file stamped copy of the motion for new trial bearing both

the original and served cause numbers that indicated that the filing was accepted. (3

RR 22, SCR 7-8) Appellants’ counsel did not receive notice that the motion was not

filed in both cases or that the filing was rejected in any way. (3 RR 28-29)


                                            3
      Appellees received notice of the motion for new trial and responded. (CR 56-

60) On April 10, 2015, the trial court then held a hearing on the motion for new trial

at which both Appellees and Appellants appeared, presented evidence, and argued the

merits of the motion. (2 RR) The trial court granted Villa Dijon’s and Implicity’s

motion for new trial contingent upon payment of attorney’s fees and court costs by

Appellants to Appellees. The trial court notated and signed her ruling granting the

motion in the judge’s notes for the hearing. (2 RR 11, 2 RR 19, SCR 44) Appellants

tendered that payment to Appellees. (SCR 46-47, 4 RR 17-18)

      On April 13, 2015, after appellees received payment and a proposed formal

order from Appellants, Appellees filed a motion for rehearing in the severed cause

alleging 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 never technically filed in the

severed cause, but was only technically filed in the original case even though

Appellants had a file marked copy of the motion for new trial bearing both the

original and severed cause numbers. (CR 63, 38) While Appellees filed their motion

for rehearing three days after the hearing on the motion for new trial, Appellees did

not set this motion for hearing until April 30, 2015, 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. (CR 63)

      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


                                              4
cause was a result of a mistake of the district clerk or the electronic filing system,

which the trial court could correct under the Texas Rules of Civil Procedure. (CR 145)

In two days of hearings on April 30 and May 1, 2015, the trial court did not correct

this mistake. (4 RR 15-17) The trial also determined that when it heard Appellants’

motion for new trial on the severed case on April 10, 2015, it had already lost

jurisdiction and the power to decide it on April 8, 2015 (30 days after the default

judgment) because the motion for new trial had not technically been filed in the

severed case. (4 RR 15)

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

                       SUMMARY OF THE ARGUMENT

      Appellants assert that the trial court erred in determining it did not have

jurisdiction to grant the motion for new trial since that motion was timely filed and

extended the court’s plenary power. Pursuant to Rule 21 of the Texas Rules of Civil

Procedure “An electronically filed document is deemed filed when transmitted to the

filing party's electronic filing service provider.” TEX. R. CIV. P. 21. It is undisputed

that Appellants’ motion for new trial was timely transmitted to the district clerk and

accepted for filing at April 6, 2015 at 2:49:18 PM and there is no rule or law ordering

that the document be submitted twice for filing in a second case when the document

bears two cause numbers. (SCR 8) The motion was thus timely filed and extended the

court’s plenary power. (SCR 8) Therefore, the trial court erred in determining that it




                                           5
had no plenary power, and this case should be remanded for a new trial consistent

with the trial court’s ruling at the hearing granting Villa Dijon’s and Implicity’s motion

for new trial.

        If the Fourth Court determines that the motion was not timely filed, the trial

court still erred in refusing Appellants’ request for an extension to complete the filing

due to technical error as required by Rule 21(f)(6) of the Texas Rules of Civil

Procedure. At the hearings on the motion for rehearing, Appellants presented

evidence of a technical failure in the filing system resulting in the inability to file the

motion in the severed cause, thereby missing the deadline and requested relief from

the trial court. (SCR 1-7, 3 RR 19-22, 29-30) The trial court, however, erroneously

refused to grant Appellants the relief required by Rule 21(f)(6) and this case should be

remanded so that Appellants can cure the filing error.

                         ARGUMENT AND AUTHORITIES

I. Standard of Review

       After a diligent search, Appellants have not been able to find any authority

reviewing the application of Rule 21(f)(6) of the Texas Rules of Civil Procedure.2 See




2
  As it only became effective on January 1, 2014, Appellants were only able to find two cases
addressing Rule 21(f)(6) and both of those cases only noted the existence of the rule in dicta. See
Reed v. Marmaxx Operating Corp., No. 4:14-CV-10, 2015 WL 123951, at *5 (E.D. Tex. Jan. 7, 2015);
Aziz v. Waris, No. 01-15-00175-CV, 2015 WL 5076295, at *3 (Tex.App.— Houston [1st Dist] Aug.
27, 2015, no pet.)



                                                6
TEX. R. CIV. P. 21(f)(6). Appellants believe that the application of 21(f)(6) should be

reviewed de novo as Rule 21(f)(6) does not grant discretion to the District Court. Id.

II. The trial court erred in determining that it lacked plenary power to grant
    Appellants’ motion for new trial.

       It is undisputed that if Appellants’ motion for new trial was timely filed, the

trial court had plenary power to hear and grant a new trial in this case. See TEX. R. CIV.

P. 329b. After it had heard and granted the motion for new trial, however, the trial

court ruled that the motion was not timely filed in the severed cause. (4 RR 14-19) As

such, if this Court finds that the motion was timely filed, the case must be remanded

for a new trial pursuant to the trial court’s granting of the motion for new trial.

       “Generally, ‘an instrument is deemed in law filed at the time it is left with the

clerk, regardless of whether or not a file mark is placed on the instrument and

regardless of whether the file mark gives some other date of filing.’ ” Warner v. Glass,

135 S.W.3d 681, 684 (Tex.2004) (per curiam) (quoting Standard Fire Ins. Co. v. LaCoke,

585 S.W.2d 678, 680 (Tex.1979)); see also Jamar v. Patterson, 868 S.W.2d 318, 319

(Tex.1994) (per curiam) (“In a long line of cases, this court has held that a document

is ‘filed’ when it is tendered to the clerk, or otherwise put under the custody or control

of the clerk.”). The purpose of these rules is to protect a party from being penalized

by the errors and omissions of the court clerk. See Biffle v. Morton Rubber Indus., Inc., 785

S.W.2d 143, 144 (Tex.1990)(per curiam). Likewise, under the Texas Rules of Civil




                                             7
Procedure, “An electronically filed document is deemed filed when transmitted to the

filing party's electronic filing service provider.” TEX. R. CIV. P. 21(f)(5).

       There is no rule or law requiring that a document be electronically tendered to

the clerk twice when a party is filing the same document in two cases. See generally TEX.

R. CIV. P. 21; BEXAR COUNTY LOCAL RULES FOR ELECTRONIC FILING (setting out the

parameters for E-filing in Bexar County). The rules specifically state: “The clerk may

not refuse to file a document that fails to conform with this rule. But the clerk may

identify the error to be corrected and state a deadline for the party to resubmit the

document in a conforming format.” TEX. R. CIV. P. 21(f)(11). If a party needed to re-

tender an identical document for filing in a second case, then pursuant to Rule

21(f)(11), the clerk should conditionally file the document bearing both cause

numbers, identify the error in the filing, and give the filer a deadline to re-tender the

document. Simply put, “Once a party has satisfied his duty to put a legal instrument in

the custody and the control of the court clerk, he should not be penalized for errors

made by the court clerk.” Warner v. Glass, 135 S.W.3d 681, 684 (Tex.2004) (per

curiam) (citing Biffle, 785 S.W.2d at 144).

       Logistically, there is no need for a second tender because, “The clerk is not

required to keep both paper and electronic versions of the same document unless

otherwise required by local rule.” TEX. R. CIV. P. 21(f)(13). If an identical document is

to be filed, pursuant to the rules, the Clerk only needs one electronic copy.




                                              8
      In this case, it is undisputed that the Appellants tendered the motion for new

trial bearing both cause numbers to the clerk timely. (SCR 8) It is also undisputed

that the clerk did not reject the filing, notify Appellants of any error, or give

Appellants a deadline to re-file. (3 RR 22, 28-29, SCR 7-8) At the hearing, Appellees

only complained that it wasn’t placed in the hands of the clerk “in both cases.” (3 RR

33) The trial court agreed, and ruled that it did not have plenary power at the time of

the hearing on the motion for new trial in the severed case. (4 RR 14-17) The

heightened burden advanced by the trial court is simply not supported by common

law or Texas Rules of Civil Procedure and as such, the ruling that the trial court

lacked plenary power was erroneous as a matter of law.

      Prior to e-filing, if Appellants had hand-filed or filed the motion by mail in the

exact same format as it was electronically tendered in this case, it would have been

deemed timely filed in both cases as it bore both cause numbers. (SCR 8-13); See

generally Warner v. Glass, 135 S.W.3d 681, 684 (Tex.2004)(per curiam). When the

Supreme Court mandated e-filing, it also amended Rule 21 of the Texas Rules of Civil

Procedure to establish the proper parameters for e-filing in this state. See TEXAS

SUPREME COURT MISC. DOCKET NO. 13-9165. The Supreme Court did not create the

burden to which the trial court held Appellants. It did not order that two separate

electronic transmissions were required to deem an identical motion timely filed in

multiple cases and this Court should not either.




                                           9
       Furthermore, neither Appellees nor the trial court was prejudiced by

Appellants’ single transmission of the motion for new trial. The trial court was able to

read the motion and hold a hearing on its merits. Appellees received notice of the

motion, were able to timely file its response, presented evidence on the motion’s

merits, and were able to fully argue the merits of the motion at that time. (SCR 14-15,

CR 56-62, 2 RR )

       It was not until after the motion for new trial was fully briefed, argued, and

orally granted that anyone discovered the motion for new trial had only been filed in

one of the two cases. (3 RR 5-9) The trial court’s ruling was purely based upon a

technicality that is not favored by the modern approach of liberal interpretation for

the Texas Rules of Civil Procedure and penchant for deciding cases on the merits. See

TEX. R. CIV. P. 1 (mandating that all rules of civil procedure be given a liberal

construction to promote the just, fair, equitable and impartial adjudication of the

rights of litigants.).

       Under the common law and the Texas Rules of Civil Procedure, the trial

court’s reliance on Appellees’ hyper-technical contention that the district clerk had

not actually filed the motion in the severed cause was erroneous as was her ruling that

Appellants’ filed marked motion for new trial bearing both cause numbers did not

extended the trial court’s plenary power. Consequently, this case should be remanded

for a new trial constituent with the trial court’s ruling on the merits of Appellants’




                                          10
motion for new trial. Such a result would also satisfy the goal of the Texas Rules of

Civil Procedure to have cases decided on their merits and not on technicalities.

III. The Court erred in refusing to grant Appellants a reasonable extension of
     time to complete filing under Rule 21(f)(6) of the Texas Rules of Civil
     Procedure.

       As discussed above, Rule 21 of the Texas Rules of Civil Procedure provides the

rules for e-filing in Texas. Section 21(f)(6) of Rule 21 provides:

       If a document is untimely due to a technical failure or a 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. CIV. P.
       21(f)(6)(emphasis added).

This rule clearly requires that an extension of a deadline be given if a filing party seeks

relief from the court and shows 1) a technical failure and 2) a missed deadline

imposed by the Texas Rules of Civil Procedure. Id. The rule does not reserve any

discretion for the trial court, but states that the extension “must be given.” Id.

       It is undisputed that the deadline for filing a motion for new trial is imposed by

Rule 329b of the Texas Rules of Civil Procedure and that in their response to

Appellees’ motion for rehearing, Appellants requested relief under 21(f)(6) to

complete the filing of its motion for new trial. TEX. R. CIV. P. 329b; (CR 146-150,

SCR 1-15) If this Court determines that the motion for new trial was not timely filed,

then the untimeliness of filing was “due to a technical error,” and the trial court was

required to give Appellants an extension. Tex. R. Civ. P. 21(f)(6). See generally, Methodist

Hospitals of Dallas v. Corporate Communicators, Inc., 806 S.W.2d 879, 884 (Tex.App.—


                                            11
Dallas 1991, writ denied)(holding “the court has no power, where no discretion is

reserved, to suspend or modify any rule.”)

      The record clearly shows a technical error occurred when Appellants attempted

to file the motion for new trial a second time into the severed cause number. Mrs.

Hernandez attempted to file the document in the severed case. The Bexar County

District Court’s e-filing system, however, would not allow her to file it (SCR 6-7, 3 RR

19, 5 RR 274), because the Bexar County District Clerk had prematurely closed the

case in error after the default judgment was filed as evident from the docket sheet

entered by Appellees. (5 RR 274) Appellants note that this is not the first time that

the Bexar County District Clerk’s Office has closed a case in error. It has a history of

doing so. See Cappetta v. Hermes, 222 S.W.3d 160, 163 (Tex.App.—San Antonio 2006,

rehearing overruled)(district clerk misinformed counsel as to the status of the case and

noted in the record the case was closed pending a ruling in the bankruptcy court);

Rosedale Partners, Ltd. v. 131st Judicial District Court, Bexar County, 869 S.W.2d 643, 646

(Tex. App.—San Antonio 1994, no pet)(determining that all claims and defenses were

not disposed when “the docket sheet shows an entry, contemporaneous with the

entry of the default judgment, indicating ‘case closed’”); Strong v. Jackson, No. 04-04-

00135-CV, 2005 WL 1458074, at *1 (Tex. App.—San Antonio June 22, 2005, no

pet.)(determining summary judgment did not dispose all issues in the case and noting

“the district clerk closed the case with the notation “Case Closed Summary Judgment”

on the same day the trial judge signed the summary judgment”).


                                             12
      Mrs. Hernandez then called the clerk’s office to notify them of the error and to

get them to reopen the case. (SCR 6-7, 3 RR 19-22) The clerk gave her the impression

that the document would be filed in both cases and the case would be reopened. (3

RR 22, 29; SCR 7-8)       The severed case was later reopened as evident by the

subsequent electronic filings, but unbeknownst to Appellants its motion for new trial

had not been filed in both cases. (3 RR 28-29, 4 RR 17, 5 RR 274, CR 56-62)

      This error was clearly a technical error and the trial court was required to give

Appellants the requested extension. It did not, and the case should be remanded so

that Appellants can complete the filing.

IV.   Conclusion

      In conclusion, this case must be remanded because the motion for new trial

was timely filed pursuant to Rule 21(f)(5) of the Texas Rules of Civil Procedure and

trial court erred in determining that it lacked plenary power to rule on Appellants’

motion for new trial. See TEX. R. CIV. P. 21(f)(5). Even if this Court finds that the

motion for new trial was not timely filed, the case must still be remanded so that

Appellants are granted an extension to complete the filing pursuant to Rule 21(f)(6) of

the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 21(f)(6). Ordering otherwise

would be contrary to the rules of civil procedure and would go against the modern

trend of deciding cases on the merits, rather than on procedural technicalities.




                                           13
                                                 Respectfully submitted,

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



                                                 By: s/ Robert W. Loree
                                                    Robert W. Loree
                                                    State Bar No. 12579200

                                                 Attorney for Appellants

                      CERTIFICATE OF COMPLIANCE

      Relying on the word count function in word processing software used to
produce this document, I certify that the length of this document is 3,276 words
excluding those portions of the document identified in TEX. R. APP. P. 9.4(i).


                                                    s/ Robert W. Loree
                                                    ________________________
                                                    Robert W. Loree

                         CERTIFICATE OF SERVICE

      I hereby certify that on November 11, 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, by electronic transmission through
the Court’s electronic filing service.

                                                    s/ Robert W. Loree
                                                    _________________________
                                                    Robert W. Loree




                                         14
                                             INDEX TO APPENDIX
Order on Final Default Judgment ..............................................................................Tab A

Motion of Defendant’s Villa Dijon Condominium Association, Inc. and
Implicity Management Company to Set Aside a Default Judgment and for a
New Trial ....................................................................................................................... Tab B

Judge’s Notes on Motion for New Trial .................................................................... Tab C

Reporter’s Record Volume 4, Transcript of May 1, 2015 hearing ......................... Tab D

Texas Rule of Civil Procedure 21 ............................................................................... Tab E




                                                                 15
APPENDIX A
                                  2015-CI-03926                         J-- -·· - _ --·-
                            1ssTH JUOICIAL DISTRICT COURT
                     MARY WINTERS ET AL VS UllLA DIJON CONDO '-.
                                                                      '. 111111~~1111
                                                                           2015
                                                                               c103926
                                                                                      "1 ;
                                                                                         -P000!1   J
                               DATE FILED · 03/09/2015           __•..-1
                             \.iAU~l:"O.  2015Cl00148

MARY WINTERS AND MILA                     §
CHEATOM          F~E. PAlO .              §
                                          §
v.                                        §
                                               IN THE DISTRICT COURT
                                          §
738 PROPERTY, LLC; CHAPA &                §
FULLER REALTY, LLC; DENCITY               §
DEVELOPMENT, LLC; VILLA                   §
DIJON CONDOMINIUM                         §
ASSOCIATION, INC; AND                     §
IMPLICITY MANAGEMENT                      §
COMPANY.                                  §

                     FINAL DEFAULT JUDGMENT AS TO
            VILLA DIJON CONDOMINIUM ASSOCIATION, INC. AND
                    IMPLICITY MANAGEMENT COMPANY

       ON THIS DAY Plaintiffs MARY WINTERS and MILA CHEATOM (collectively,

"Plaintiffs") moved for a final default judgment against Defendants VILLA DIJON

CONDOMINIUM ASSOCIATION, INC. ("Villa Dijon") and IMPLICITY MANAGEMENT

COMPANY ("lmplicity") (collectively, 11 Default Defendants"). At the hearing, Plaintiffs

appeared in person and through their attorney. Default Defendants did not appear.

The Court determined it had jurisdiction over the subject matter and the parties in

this proceeding. After cansidering the pleadings, the papers on file in this case, and

the evidence Plaintiffs presented on liability, damages and attorney fees, the Court

GRANTS Plaintiffs' motion for final default judgment and RENDERS judgment for

Plaintiffs MARY WINTERS and MILA CHEATOM against VILLA DIJON

CONDOMINIUM ASSOCIATION, INC. and IMPLICITY MANAGEMENT COMPANY.




10

                                                                  DOCUMENT SCANNED AS FILED
The Court FINDS the following:
     1. Defendant Villa Dijon was served with citation and a copy of Plaintiffs' Original
        Petition on January 23, 2015 in accordance with the Texas Rules of Civil
        Procedure.
     2. Defendant lmplicity was served with citation and a copy of Plaintiffs' Original
        Petition on January 23, 2015 in accordance with the Texas Rules of Civil
        Procedure.
     3. The citations and proofs of service were on file with this Court for at least ten
        days before the judgment was rendered.
     4. The deadline for Default Defendants to file an answer was March 3, 2015 by
        S:OOPM.
     5. Default Defendants did not file an answer or any other pleading constituting
        an answer.
     6. The Court granted a Default Judgment With Respect to Liability as to Villa
        Dijon and lmplfcity on March 6, 2015.
     7. The last known address for VILLA DIJON CONDOMINIUM ASSOCIATION,
        INC. is:
                          Villa Dijon Condominium Association, Inc.
                              603 N New Braunfels Ave, STE 101
                                San Antonio, Texas 78217-6398


     8. The last known address for IMPLICITY MANAGEMENT COMPANY ls:


                              lmpliclty Management Company
                             603 N New Braunfels Ave, STE 101
                              San Antonio, Texas 78217-6398

     9. The Court held a hearing at which Plaintiffs presented evidence by way of
        affidavits and exhibits admitted into evidence.




                   FINAL DEFAULT JUDGMENT AS TO VILLA DIJON AND IMPLICllY
                                       PAGE 2 OF 7
11

                                                                   DOCUMENT SCANNED AS FILED
                                      DAMAGES
        As a result of the evidence presented at this hearing, the Court further FINDS
that MARY WINTERS sustained damages in the following amounts:


     10. Loss of Market Value                          $     L2 (2 I I s=. 00
                                                                        I

                                                                  '
     11. Loss of Use                                   $    '\ / ~ l 1. rn
     12.Condominium Owner's Association Fees           $    ~ 0 g j- · °I s-
                                                               I
                                                               1




        The Court ORDERS that MARY WINTERS recover from Villa Dijon and
lmplicity the damages listed in 10-12.


        As a result of the evidence presented at this hearing, the Court further ANDS
that MILA CHEATOM sustained damages in the following amounts:


     13. Loss of Market Value                          $    r- 5 / ?-J.
                                                                    '
                                                                            Q.OQ


     14. Loss of Use                                   $    '8 1 1oJ..S-O
     15. Condominium Owner's Association Fees          $   5 O°\o.oo
     16. Mental Anguish in the Past                    $   (8 l    ~ S-O. oO


        The Court ORDERS that MILA CHEATOM recover from Villa Dijon and
lmpllcity the damages listed in 13-16.




                                                                                          .,
               FINAL DEFAULT JUDGMENT AS TO VILLA DIJON AND IMPLICITY
                                   PAGE 3 OF7
12

                                                                   DOCUMENT SCANNED AS FILED
                                COURT COSTS AND ATTORNEY FEES
         As a result of the evidence presented at this hearing, the Court further FINDS
that MARY WINTERS & MILA CHEATOM incurred the following reasonable and
necessary court costs and reasonable and necessary attorney fees:


      17.Mary Winters Court Costs                                $_l___~_o_.......d.._o_ _
      18.Mila Cheatom Court Costs                                $     ) J.. o . )...o

      19. Mary Winters Attorney Fee                              $   ~, \    8.f.S-o
      20. Mila Cheatom Attorney Fee                              $   l1 1 l~f. S-D

         The Court ORDERS that MARV WINTERS and MILA CHEATOM recover from
Villa Dijon and lmplicity the court costs and attorney fees listed in 17-20.


                    PRE-JUDGMENT AND POST-JUDGMENT INTEREST

        The Court ORDERS that Plaintiff MARV WINTERS recover prejudgment

Interest on $         ~ 0 / & J... Lt • y S°           (the actual damages awarded and

excluding court costs and attorney fees) at the rate of 5% from

     A ~r ~   \ · .).. &,   }. o \ L{   until the date of this judgment. This calculation equals:

$     5 1 "ii'f.."-s

        The Court ORDERS that Plaintiff MILA CHEATOM recover prejudgment

interest-on $        '& '3 / ~ c, l · S- D             (the actual damages awarded and

excluding court costs and attorney fees) at the rate of 5% from

_A~~r-·,_\_J.._i-",_J.._c_\_Y~-- until the date of this judgment. This calculation equals:
$ ) S"""°'t I} . I )


                   FINAL DEFAULT JUDGMENT AS TO VILLA DIJON AND IMPLICITY
                                       PAGE40F7
13

                                                                          DOCUMENT SCANNED AS FILED
        The Court ORDERS that Plaintiff MARY WINTERS recover postjudgment

interest on $      °' '"') lo\ °I · !1- ~
                         J                     (the actual damages awarded plus the

prejudgment interest plus the court costs plus the attorney fees) at the rate of 5%

compounded annuaUy from the date this judgment is entered until all amounts are

paid in full.



        The Court ORDERS that Plaintiff MILA CHEATOM recover postjudgment

interest on $   <\ lD r ~ ~ '+ · ) .r          (the actual damages awarded plus the

prejudgment interest plus the court costs plus the attorney fees) at the rate of 5%

compounded annually from the date this judgment Is entered until all amounts are

paid in full.



                                      SEVERANCE
       The Court ORDERS that all claims against VILLA DIJON CONDOMINIUM
ASSOCIATION, INC. and IMPLICITY MANAGEMENT COMPANY are severed from
Cause No. 2015CI00148.
       The Court ORDERS the court clerk (1) to assign the severed actions and
parties the separate cause number of        2 0 l 5 C: J .· O3 9 2 6
and (2) to copy the following documents and include them in that file:
           1. Plaintiffs' Original Petition, Jury Demand and Request for Disclosure;
           2. The Citation and Officer's Return for Villa Dijon Condominium
                Association, Inc.;
           3. The Citation and Officer's Return for lmplicity Management Company;
           4. Plaintiffs' Default Judgment With Respect To Liability As To Villa Dijon
                Condominium Association, Inc. and lmplicity Management Company;
           5. The Certificates of Last Known Address for Villa Dijon Condominium
                Assoqiation, Inc. and lmplicity Management Company;

                 FINAL DEFAULT JUDGMENT AS TO VILLA DIJON AND IMPLICITY
                                     PAGESOF7
14

                                                                 DOCUMENT SCANNED AS FILED
         6. A copy of the docket sheet;
         7. A copy of this Final Default Judgment   As To Villa Dijon Condominium
            Association, Inc. and lmplicity Management Company; and
         8. Exhibits 1 through 23 which were admitted into evidence at the hearing
            on the Final Default Judgment As To Villa Dijon Condominium
            Association, Inc. and lmplicity Management Company.




 THIS JUDGMENT FINALLY DISPOSES OF ALL CLAIMS AND ALL PARTIES IN

     CAUSE N0.2   0 J 5 CI 0 3 9 2 6                      AND IS APPEALABLE



      THE COURT ORDERS EXECUTION TO ISSUE FOR THIS JUDGMENT




SIGNEDON      (Y\_~ ~                      , 2015




                                      PRESIDING J\GE ' \




            FINAL DEFAULT JUDGMENT AS TO VILLA DIJON ANO IMPLICITY
                                PAGE 60F 7
15

                                                              DOCUMENT SCANNED AS FILED
APPROVED AND ENTRY REQUESTED:




      LEIBOWITZ LAW FIRM PLLC




By:
      J    OBS. LEIBOWITZ (jacob@feibowitzlaw.com)
      Texas Bar No. 24066930
      700 N St Mary's St, STE 1750
      San Antonio, TX 78205
      T (210) 225~8787
      F (21 0) 225-2567
      ATTORNEY FOR
      MARY WINTERS AND MILA CHEA TOM




             FINA!.- DEFAULT JUDGMENT AS TO VILLA DIJON AND IMPLICITY
                                   PAGE 7 OF 7
16

                                                             DOCUMENT SCANNED AS FILED
APPENDIX B
  FILED
• 4/6/201'5 2:49:18 PM
  Donna Kay McKinney
  Bexar Cou11ty Distrld Clerk
. Accepted.By: Marc·Garcia


                                                     Cause No. 2015-Cl-00148

                                                                and

                                                 Severed Cause No. 2015-Cl-03926

                MARY WINTERS AND MILA CHEATOM                     §                 INTHE DIST
                                                                  §
                         Plaintiff                                §
                                                                  §
                v.                                                §
                                                                  §
                738 PROPERTY, LLC 1 CHAPA & FULLER                §
                REALTY, LLC, DENCITY DEVELOPMENT,                 §
                LLC, VJLLA DIJON CONDOMINIUM                      §
                ~SSOCIATION, INC, AND IMPLICITY                   §
                MANAGEMENT COMPANY                                §
                                                                  §
                         Defendants                               §                 BEXAR COUNTY, TEXAS

                         MOTION OF DEFENDANTS VILLA DIJON CONDOMINIUM ASSOCIATION, INC.                            r
                                       AND IMPLICITY MANAGEMENT COMPANY
                              TO SET ASIDE A DEFAULT JUDGMENT ANO FOR A. NEW TRIAL

                TO THE HONORABLE JUDGE OF SAID COURT:

                         Defendants, Villa Dijon Condominium Association, Inc. and lmplicity Management

                Company, file this motion ·to set aside the March 9, 2015 default judgment against these

                Defendants and grant a new trial. In support of this motion, Defendants would show this

                honorable court the following:

                                                         I.   Introduction

                         Defendant Villa Dijon Condominlum Association , Inc. (hereafter ~villa Dijon") is a

                condominium association in whlch each Plaintiff owns a condominium. Defendant lmplicity

                Management Company (hereafter "lmplicity") is a management company retained by Villa Dijon

               to manage the condominium association .

                         On .January 6, 2015 , Plaintiffs, Mary Winters and Mila Cheatom sued Defendants Villa

                Dijon and lmpllcity for breach of contract and negligence for not repairing foundation movement

                and related damage to Plaintiffs' units at the Villa Dijon Condominiums. The Court signed a

                Default Judgment for Plaintlffs against Villa Dijon and lmplicity on March 9, 2015. In addition,

   Case Number: 2015CI00148                            Document Type: MOTION FOR NEW TRIAL AND SET ASIDIJl~~'J JUDGMENT


              38                                                  t            r-                            I'
                                          DOCUMENT SCANNED AS                f;t&b,/-( I) I (       '\   p
          the court ordered that     anclaims   against Villa Dijon and lmplicity be severed from Cause No.




                                              II. Arguments and Authorities




             124, 126 (Tex. 1939);

                    a. Demonstrate that the failure to file an answer or appear at a hearing was not
                       intentional or the result of conscious indifference. but was a mistake or accident.
                        Estate of Pol/acl< v. McMu"ey, 858 S.W. 388, 391 Tex _1993);

                    b. Set up a meritorious defense. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966); and

                    c . Demonstrate that granting a new trial will not result in delay or prejudice the plaintiff.

             By this-motion, Defendants wlll show that they easily satisfy these requirements and are entitled
          to having the default judgment set aside.

          A. Defendant's failure to answer was the result of a mistake or accident

                    The court should grant a new trial because defendant's failure to answer was not

             intentional, but was a mistake or accident. On or about January 23, 2015, Plaintiffs served Jody

          Marquez, the registered agent for Villa Dijon and lmplicity. Ms. Marquez Is the president of

             lmpliclty, who manages Villa Dijon. After being served, Ms. Marquez had her office send the

          lawsuits to the insurance agents for Villa Dijon and lmplicity as she had been previously been

          instructed by those agents so they could notify the insurer, who would then answer the lawsuit.

          As a-result, Ms. Marquez believed that once she had sent the lawsuits to her Insurance agents,

          the insurer would file an answer for VIiia Dijon and lmplicity, She even received an email from

          the insurance agent on February 17 1 2015 stating that he had obtained an extension to answer

          the lawsuit. but no such answer was thereafter fi led for either Villa Dijon or lmplicity. After

          receiving the March 9, 2015 default judgment, Villa Dijon and fmplicity retained the undersigned

          counsel to set aside the default judgment. These facts are supported by the attached affidavit of


Case Number: 2015CI00148                           Document Type; MOTION FOR NEW TRIAL AND SET ASIDlflijfil'l\W-1 JUDGMENT


        39                                                     2

                                        DOCUMENT SCANNED AS FILED
             Jody Marquez and clearly show that Villa Dijon's and lmplicity1s failure to answer was an




                    Plaintiffs have sued Villa Dijon and lmpliclty for breach of contract and n



             Is no contract between Plaintiffs and these Defendants. Under the Declarations and BYlb:sail'?"'

          Villa D!jon, it only has the obligation of maintenance of the common elements of the association.

          It is not required to maintain or repair any portion of the common elements that serves only the

          Individual unit owner's condominium, like the slab under Plainttffs 1 unit. As a result, Villa Dijon

             does not have a duty to maintain or repair the foundation under Plalntiffs' condominiums . Since

          there is no such duty under the Declarations and Syraws, Villa Dijon cannot be liable for any

             negiigence In regards to that duty.

                    Defendant lmplicity as the management company has no contract with Plaintiffs. It is

             also not responsible for the maintenance or repair of the common elements of Villa Dijon under

             the subject Declarations and Bylaws. As a result, it is also not liable for negligence In regards to

             any maintenance or repair duty on the foundation of Plaintiffs' condominiums.

             C. Ptaintiffs will suffer no Injury or harm in the granting of a new trial.

                    The court should grant a new trial because a new trial wm not delay or prejudice plaintiff.

             Defendants are ready for trial and are willing and able to reimburse Plaintiffs for all reasonably

             expenses Incurred in obtaining the default judgment.

                    For all these reasons, and in the interest of justice and fairness, VIiia Dijon Condominium

          Assoc ation, Inc. and lmplicity Management Company request that the court grant this motion,

             set aside the March 9.• 2015 final judgment, and award Villa Dijon and lmplicity a new trial and

             such other relief as may be proper.




Case Number: 2015CI00148                           Document Type: MOTION FOR NEW TRIAL AND SET ASIDlf>ij,fC™lt.'1 JUDGMENT


        40                                                    3

                                        DOCUMENT SCANNED AS FILED
                                                                         Respectfully submitted,




                                                                         Attorney for Defendants

                                               ORDER SETTING HEARING

                    It is ORDERED that a hearing on De.fendants' Moti.on to Set Aside Default Judgment and
                                     9:00
             for a New Trial is set at-&.98 a.m. on April 10. 2015 in the presiding District Court, Room 109 of

             Bexar County, Texas.    4/6/2015                             Cathl:e en M. Stryker
                                                                          Presiding Judge
                                                                         J~~~hsi51~trict Court
                                               CERTIFICATE OF SERVICE

                    I hereby cert fled that counsel for Defendants has served a true and correct copy of this
             motion on counsel for Plaintiffs Jacob S. Leibowitz, 700 North St. Mary's Street, Suite 1750, San
             Antonio, Texas, by email to Jacob@Jeibowltzlaw.com and by facsimile transmission to {210)
             225-2567.




Case Number 2015CI00148                           Document Type. MOTION FOR NEW TRIAL AND SET ASIOIJ>~~ JUDGMENT


        41                                                   4

                                       DOCUMENT SCANNED AS FILED
                                                Cause No. 2015-CI-00148




                   Plaintiff

             v.

             738 PROPERTY, LLC, CHAPA & FULLER
             REALTY, LLC, DENCITY DEVELOPMENT,
             LLC, VILLA DIJON CONDOMINIUM
             ASSOCIATION, INC, AND IMPLICITY
             MANAGEMENT COMPANY
                  Defendants                                                    BEXAR COUNTY, TEXAS

                                           AfFIDAVIT OF TODY MARQUEZ

             ST ATE OF TEXAS              §
                                          §
             COUNTY OF BEXAR              §

                    BEFORE ME, the undersigned authorily, on th.is day personally a?peared Jody

             Marquez, who after being duly sworn, stated as follows;

                    1. My name is Jody L. Marquez. Jam over 18 years of age and Teim fuJly competent to
                        make this affidavit. I am the president and sole owner of Plainliff, Implicity
                        Management Company (hereafter ''Implicily"), and have personal knowledge of the
                        facts ~rated in this affidavit, all of which nrc true and c:orrC<'t.

                    2. I first became affiliated with the multifamily real estate leasing industry in 1985
                       when I took a part-time leasing position while worlcing to become a licensed realtor
                       in the state of Texas. Ever since, l have 30 years of experience in the residential real
                       estate leasing and management industry.

                    3. In May 2009, I opened lmplicity for business with my partners and in September of
                       2011, l became sole owner of the company. At all times since its opening, I have beP.n
                       president of Implkity.

                    4. ln 2009, Villa Dijon Condominium Association, Inc. (hereafter "VllJa Dijon") retained
                       Jmplicity to manage the association. Under that management agreement, lmplicity
                       procures both the property and liability insurance for Villa Dijon, which is conunon
                       practice in the industry. Pursuant to this responsibility, I procured such insurancP.

Case Number: 2015CI00148                          Document Type. MOTION FOR NEW TRIAL AND SET ASIDIH~~1 JUDGMENT


        42

                                      DOCUMENT SCANNED AS FILED
             ..

                      for Villa Dijon through an insurance agent, Commercial Insurance Solutions of
                      Dallas Texas. lmplicity also procured its insurance through the same               ·. .
                      agent insl1·ucted me to notify them wh~.never lmplicity had a claj111           ~~.~Jl«~-4'9
                      the agent would then notify the insurer, which is standard practice ·       ~clus        ··.. 'b
                                                                                            s..... ,: o .
                                                                                                                   ... c:::.
                                                                                                                        ·z
                  5. Ma1·y Winters and Mila Chen tom served me, Jody Marquez, on 01· • ~~ Ja           • , ~ -~
                     2015. I am the registered agent for Villa Dijon and Implicity. Afte ~il).g s e~\i .: -:--t
                     had my office send the lawsuits to my insurance agents for Villa Dij 'fui~. plk~···· ~
                     as I would when a claim or lawsuit occurs. The agents were suppose' · n~Cift'lhc
                     insurer, who would then answer the lawsuit for Villa Dijon and llllpli~~~~P-­
                     sent the lawsuits to my insurance agents, I believed that the mattel' would be taken
                     care of and that the insurer would answer the lawsuits fo1· Villa Dijon and Implicity.

                  6. J even received an email from the insurance agent on February 17, 2015 that said that
                     he had obtained extension to answer the lawsuit, but no such answer was thereafter
                     filed for Villa Dijon or hnplicity. I did not intentionaJly fail to answer the lawsuit
                     against Villa Dijon and lmplidty and the insurance agents mistakenly faiJed to keep
                     me informed. After receiving the March 9, 2015 default judgment. Villa Dijon and
                     lmplicity retained attorney Robert W. Loree t~~the-d a ult ·!$\             nt.

                  Further affiant sayeth not.




                  SWORN TO AND SUBSCRIBED BEFORE ME on April~ 2015.



                                                                              ublic, Stare of Texas

                                                                    My Commission ~xpires:(o -        z.<a...._/l




Case Number: 2015CI00148                          Document Type· MOTION FOR NEW TRIAL AND SET ASID8'~~'1 JUDGMENT

                                                               2
        43

                                      DOCUMENT SCANNED AS FILED
             ..
       CERTIFIED COPY CERTIFICATE STATE OF TEXAS
       I, DONNA KAY M'l<INNEY. BEXAR COUNTY DISTRICT
       CLERK. DO HEREBY CERTIFY THAT THE FOREGOING
       IS A TRUE ANO CORRECT COPY OF THE ORIGINAL
       RECORD NOW IN MY LAWFUL CUSTODY. IJVITNESS
       MY OFFICIAL HANO ANO SEAL OF OFFICE ON THIS


             May 19, 2015




                       T TllE CLERXS'S OR/GIN.-«L SIGNA TUR£.J




Case Number: 2015CI00148                            Document Type· MOTION FOR NEW TRIAL AND SET ASIDIM~P;O-ML1' JUDGMENT


        44

                                       DOCUMENT SCANNED AS FILED
APPENDIX C
44
45
APPENDIX D
                                                                            1

1

2                          VOLUME 4 OF 5 VOLUMES
3                 TRIAL COURT CAUSE NO. 2015-CI-00148
                                                            FILED IN
4    MARY WINTERS, ET AL                           4th COURT
                                    ) IN THE DISTRICT  COURTOF APPEALS
                                                    SAN ANTONIO, TEXAS
                                    )
5    VS.                            ) 166TH JUDICIAL06/18/2015
                                                      DISTRICT 3:26:35 PM
                                    )                 KEITH E. HOTTLE
6    738 PROPERTY, LLC, ET AL       ) BEXAR COUNTY, TEXAS Clerk

7

8                 TRIAL COURT CAUSE NO. 2015-CI-03926

9    MARY WINTERS, ET AL            ) IN THE DISTRICT COURT
                                    )
10   VS.                            ) 166TH JUDICIAL DISTRICT
                                    )
11   VILLA DIJON CONDOMINIUM        )
     ASSOCIATION, INC., ET AL       ) BEXAR COUNTY, TEXAS
12

13
     ---------------------------------------------------------
14

15              PLAINTIFF'S MOTION FOR RECONSIDERATION
16                              MAY 1, 2015
17                         VOLUME 4 OF 5 VOLUMES

18   ---------------------------------------------------------
19         On the 1st day of May 2015, the following proceedings
20   came on to be heard in the above-entitled and numbered cause
21   before the HONORABLE STEPHANI WALSH, Judge Presiding, held
22   in the 45th District Court, San Antonio, Bexar County,
23   Texas:
24
           Proceedings reported by machine shorthand.
25


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                  2

1

2                       A P P E A R A N C E S:

3
     MR. JACOB SAMUEL LEIBOWITZ
4        SBOT: 24066930
     MR. DAVID MCQUADE LEIBOWITZ
5        SBOT: 12179800
         DAVID MCQUADE LEIBOWITZ, P.C.
6        700 N. St. Mary's, Suite 1750
         San Antonio, Texas 78205
7        Phone: (210)225-8787
               ATTORNEYS FOR PLAINTIFF, MARY WINTERS
8

9    MR. TODD LIPSCOMB
         SBOT: 12579200
10       LOREE & LIPSCOMB
         777 E. Sonterra Blvd., Suite 320
11       San Antonio, Texas 78258-4276
         Phone: (210)404-1320
12             ATTORNEY FOR DEFENDANTS, VILLA DIJON CONDOMINIUM
     ASSOCIATION, INC., ET AL
13

14   (Telephonically)

15   MR. ROBERT A. MCNEIL
         SBOT: 24043814
16       DEANS & LYONS, LLP
         325 N. St. Paul Street, Suite 1500
17       Dallas, Texas 75201
         Phone: (214)965-8500
18             ATTORNEY FOR DEFENDANTS, VILLA DIJON CONDOMINIUM
     ASSOCIATION, INC.
19

20

21

22

23

24

25


                         JUDITH A. STEWART, C.S.R.
                            45TH DISTRICT COURT
                                                                     3

1

2                        CHRONOLOGICAL INDEX
3                       VOLUME 4 OF 5 VOLUMES
4                            MAY 1, 2015
5                                                     PAGE     VOL
6    CAPTION ..........................................   1     4
7    APPEARANCES ......................................   2     4
8    CHRONOLOGICAL INDEX ..............................   3     4
9    REPORTER'S CERTIFICATION..........................   20    4

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                         JUDITH A. STEWART, C.S.R.
                            45TH DISTRICT COURT
                                                                           4

1                                 PROCEEDINGS

2                                 MAY 1, 2015

3                     (1:42 p.m. before the Court.)
4                   (Phone call made from the bench.)

5                    THE COURT:    This is Judge Walsh in

6    San Antonio, Texas.    And a Mr. Robert McNeil had requested

7    to be part of a hearing telephonically.

8                    UNIDENTIFIED SPEAKER:       Okay.   Please hold.

9    Thank you.

10                   MR. MCNEIL:    Hello?

11                   THE COURT:    Mr. McNeil, this is Judge Walsh in

12   San Antonio.

13                   MR. MCNEIL:    Hello, Judge.     How are you?

14                   THE COURT:    I am fine.     And we have not called

15   the case.    I just want to make sure that we could hear you

16   and make sure you speak loud enough, so that's good.

17                   MR. MCNEIL:    Okay.    I hear you just fine,

18   Judge.

19                   THE COURT:    All right.     And present in the

20   courtroom is Mr. Lipscomb.

21                   MR. LIPSCOMB:    Yes.   Todd Lipscomb on behalf

22   of the defendants.

23                   MR. JACOB LEIBOWITZ:       And Jacob Leibowitz and

24   David Leibowitz on behalf of the plaintiffs.

25                   THE COURT:    And can you hear Mr. Leibowitz?


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                     5

1                  MR. MCNEIL:   I can, Your Honor.

2                  THE COURT:    All right.   Then we'll call the

3    case.

4                  Calling Cause No. 2015-CI-00148, resuming a

5    hearing which was initiated yesterday at 1:30.    And for the

6    record, would counsel make your announcements for the record

7    since we have changed counsel a bit.

8                  MR. JACOB LEIBOWITZ:   Jacob Leibowitz and

9    David Leibowitz for the plaintiffs, Your Honor.

10                 MR. LIPSCOMB:   And Todd Lipscomb on behalf of

11   the defendants.   I'm here to replace Mr. Loree who, after

12   going to chemotherapy and radiation this morning, was unable

13   to attend.

14                 MR. MCNEIL:   Robert McNeil on behalf of

15   defendant, 738 Properties, LLC, and defendant, Density.

16                 THE COURT:    All right.   Mr. Leibowitz, this

17   was your motion yesterday, so if you have anything

18   additional, you may present it to the Court.

19                 MR. JACOB LEIBOWITZ:   Your Honor, all I have

20   is just some responses to the response I received from

21   Mr. Lipscomb today right before the hearing, and I'd just

22   like to make those arguments for the record.

23                 THE COURT:    And for the record, in the

24   interim, defendants 738 -- or Villa Dijon Condominium has

25   filed a response to plaintiff's motion for rehearing and


                          JUDITH A. STEWART, C.S.R.
                             45TH DISTRICT COURT
                                                                    6

1    motion to deny entry of order granting new trial which has

2    been filed with the court and provided to counsel.

3                  Proceed, Mr. Leibowitz.

4                  MR. JACOB LEIBOWITZ:   Thank you, Your Honor.

5                  Counsel has listed three different arguments

6    for why the Court should ultimately have had jurisdiction.

7                  The first is that the motion for new trial was

8    timely filed in both the severed case and unsevered causes.

9    And the reasoning that they put in this response is that the

10   file stamped copy of the motion constitutes prima facia

11   evidence that the motion was timely filed.

12                 We spent a considerable amount of time

13   yesterday, and I presented to the Court Plaintiff's Exhibit

14   1 and 2, which were admitted which were the docket sheets

15   which are substantive proof, as opposed to prima facie

16   proof, that that's not true, that the motion for new trial

17   was not filed in the new cause number which dispenses with

18   that argument.

19                 Where respect to the second argument, the

20   responses that even if the motion for new trial was filed

21   solely in the non severed cause, the Court still has plenary

22   power, and several paragraphs are spent on cases that are

23   actually discussed in the Levin v. Espinosa case that I

24   brought to the Court's attention yesterday which is the

25   memorandum opinion.


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                     7

1                    And the Levin v. Espinosa case effectively

2    shows why Philbrook v. Berry still applies and is still good

3    law despite that these cases try and limit Philbrook's

4    power.   And in fact, there's several paragraphs, most

5    explicitly on the copy I gave the Court yesterday, the

6    second to the last page in the concurring opinion, that

7    deals with the Leal case, Leal v. City of Rosenberg.     And

8    this is on the second to the last page which is in the

9    concurring opinion for Levin v. Espinosa.

10                   It says:   Given the Supreme Court's trend

11   toward putting substance over procedure when reviewing

12   attempts to invoke appellate jurisdiction, some courts of

13   appeal believe the Supreme Court has effectively overruled

14   Philbrook.   And it cites Leal v. Rosenberg.

15                   And then it continues:   Nevertheless, as the

16   majority points out, the Supreme Court recently clarified

17   that a motion for new trial may not be considered, quote, a

18   bona fide attempt to invoke the appellate court's

19   jurisdiction.    And it's quoting in re: K.A.F., which is

20   160 S.W. 3d 923, 2005 Texas Supreme Court case.

21                   So effectively, the second point which

22   attempts to deal with all of the cases that Levin v.

23   Espinosa, basically, dispenses with the terms of trying to

24   eliminate the precedential value of Philbrook.     None of

25   those arguments actual prevail as a result.


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                      8

1                    And in C, the responses that in the

2    alternative the Court should order that the motion for new

3    trial was filed -- was filed in the severed cause action as

4    of April 6th.    And the reasons counsel cites Texas Rule of

5    Civil Procedure 21(f)(6), talking about technical failures.

6    There was -- there's no actual proof of a technical glitch

7    with the electronic filing.     There was a little bit of

8    testimony that it seemed not to work, but there's no actual

9    technical glitch with the system.    The rule specifically

10   says if a document is untimely filed due to a technical

11   failure or system outage -- there's no proof whatsoever of a

12   technical failure or system outage, which is their third

13   argument.

14                   And those are my current responses to the

15   response.

16                   THE COURT:   Mr. Lipscomb.

17                   MR. LIPSCOMB:   Thank you, Your Honor.   And

18   it's nice to meet you.

19                   What I'd like to go on first is straight in

20   order.   And if you look at Exhibit B to our motion, that is

21   actually the file stamped copy that the district clerk

22   returned to us.

23                   Do you have a copy of it, Your Honor?

24                   THE COURT:   I do, Your Honor.   I mean, I do.

25                   MR. LIPSCOMB:   You complement me.   As you'll


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                     9

1    see in the top left-hand corner, it shows it's file marked

2    and stamped, and you'll see it has both cause numbers on it.

3    If the clerk didn't do what they said and filed in the cause

4    that the system prohibited us from filing it, why does that

5    docket entry control over the stamped motion itself, which

6    was not only stamped, but is then signed by the presiding

7    judge, Kathleen Stryker, when she signs the fiat and changes

8    the time of the hearing.

9                   It's no different than if you have a docket

10   entry on a hearing, an order then comes through, that

11   subsequent order controls until it's modified.   No

12   different.   There's no authority they have anywhere saying

13   some docket sheet trumps the signed or the file stamped

14   motion.   And in fact, fiat order that has both cause numbers

15   on it.

16                  So we believe that that is evidence, and the

17   only evidence that should be construed because a docket

18   entry is not sufficient.

19                  And by way of example, if this Court signed an

20   order, and for some reason the clerk's office on a paper

21   copy simply transposed it into the wrong file, would that

22   somehow viciate the Court's order?   No.   Simply because

23   there's an error on the clerk's end or on the computerized

24   system's end does not eliminate the fact that it was done,

25   signed and filed.   And that's why we still have paper copies


                          JUDITH A. STEWART, C.S.R.
                             45TH DISTRICT COURT
                                                                     10

1    so when errors like this do occur, they can be corrected

2    because we have the paper to show that it was done.   That's

3    the first argument.

4                    But the second argument goes to what I think

5    of in most appellate areas nowadays, is that Philbrook is

6    archaic.    And what I mean by that is, the only case we've

7    been able to find that really applies it now -- it's this

8    memorandum opinion out of the Austin Court of Appeals that's

9    February -- which I'm sure is probably going to be appealed.

10   But what's significant about it, and it does go through some

11   distinguishing cases, is that in that case, the clerk gave

12   actual notice to the party that they didn't file it right.

13   That's not this case.    That's why the other procedural

14   concerns aren't there.

15                   When they did give the party notice, they

16   filed the motion for new trial, but it was then untimely and

17   they still could have availed themselves for a motion for

18   extension of time.    That is why it was rejected, is that

19   when you fail to do that extension of time, you're not

20   making a bona fide attempt to invoke the jurisdiction.

21                   Now, the distinguishing factor on Leal is not

22   on point.   All it says in distinguishing Leal is that some

23   courts confuse the notice of appeal and the motion for new

24   trial.   And that by implementing the motion for new trial is

25   not sufficient enough to invoke the appellate court's


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                        11

1    jurisdiction, which in turn is actually done by the notice

2    of appeal.    They don't say it's bad.     They don't say

3    anything else because they acknowledge that virtually all

4    the other courts of appeals have thrown Philbrook out the

5    window.

6                    Yesterday, Rob came back to my office and had

7    an excellent question.      And he says:   Is there a difference

8    between extending the plenary power of the trial court and

9    the appellate jurisdiction being invoked by notice of

10   appeal?    I looked hard.   I don't have an answer.    There's

11   probably some brighter minds than me looking at the darn

12   thing.

13                   But what I do come up with is the idea of

14   they're both jurisdictional documents.       They're both

15   situations that vest the court with power in one form or

16   another.    And what the trend has been, since the court has

17   changed in the early '90's, all been towards the bona fide

18   dispute standard.    And is there something there that shows

19   or puts the other parties or the courts on notice that this

20   is something that's either being appealed or requested for a

21   new trial.    And there's no reason it should have a different

22   standard.

23                   In every case they rely upon, it is a

24   situation where there has completely omitted a number.       They

25   filed it in the severed cause, they should have filed it in


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                      12

1    the unsevered cause, and there's no cause number here.     Our

2    document has both.   There's no way you can construe a

3    document that has both cause numbers on there as not a bona

4    fide attempt to invoke it in both cases.    And that's the one

5    distinguishing factor that throws all of their cases out the

6    window.   Because in this case, it has to be construed as a

7    bona fide attempt because it has both cause numbers and it

8    asks it to reverse the final judgment, to the best my

9    knowledge, has only been done in the severed cause.

10                  That is why some appellate practitioners

11   recommending putting both causes of action on one document

12   is so that you don't have conflicts between the two because

13   many times you can transpose it and have the parties or

14   something being different.

15                  So what they suggest is dot your "I's," cross

16   your "T's," file it in both.    And at worse, it's not

17   necessary in one of them.    And that's exactly what was done

18   here.

19                  The third argument, he says there's no

20   evidence of a technical glitch.    I disagree.   The affidavit

21   of Lisa Villarreal Hernandez is attached to our motion and

22   explains exactly what happened.    She filed it in one.   It

23   accepted it in the non severed cause.

24                  When she went to file it in the severed cause,

25   the screen, when you try to do it, blanked out.     Someone in


                          JUDITH A. STEWART, C.S.R.
                             45TH DISTRICT COURT
                                                                     13

1    the clerk's office had closed it, wouldn't allow it to

2    enter.   She couldn't type in the numbers.   She then called

3    the clerk's office and they said, we can take care of it on

4    our end.   Okay.

5                   She then, after that's done, gets Exhibit B

6    back, a file marked copy showing the style with both cause

7    numbers and a stamp showing that it was filed.    It doesn't

8    say it was only filed in Cause No. 00148.    The Court clerk

9    could have put that on there.    It doesn't say that it was

10   not filed in 3926.    It just simply says "filed," and there

11   are both cause numbers attached to it.

12                  Now, if there's an error, just like they did

13   in the Espinosa case, the clerk could have notified us and

14   said, you know what, there's a problem with this document.

15   They didn't do it.    They didn't do it because everyone

16   believed at the time you had the hearing on April 10th that

17   it was in both causes.   This wasn't raised until after the

18   fact, after we had already given them the money for the

19   sanctions the Court ordered.    And so now they don't like the

20   result and they're asking you to reverse yourself.

21                  MR. JACOB LEIBOWITZ:   I would like to address

22   several things.    First, the technical glitch argument.

23                  Again, in the affidavit, which is Exhibit A to

24   their response, when talking about the clerk, it's still

25   hearsay, which means it's not actual proper evidence before


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                    14

1    the Court.   It says that the clerk's -- with respect to the

2    clerk, it says at the bottom of page 1 of Exhibit A, she

3    told me that I may be having problems filing into the

4    severed case because the case was closed, but that she would

5    file the document into the severed cause.    Hearsay.   It

6    doesn't go to her state of mind -- well, even if it does,

7    her state of mind isn't relevant.

8                   THE COURT:   So are you lodging an objection to

9    their evidence?

10                  MR. JACOB LEIBOWITZ:   Yes.   So hearsay to

11   the -- whatever the clerk said.

12                  With respect to Mr. Lipscomb's

13   characterization of what actually happened, there was no

14   testimony yesterday that the screen went blank.    I don't

15   remember that at all.   And quite frankly, Your Honor,

16   there's still been no evidence whatsoever -- every time that

17   we all file something, we get email saying it was accepted

18   or not.   And there's been no evidence offered of the email

19   that actually -- that we would actually receive from the

20   Court saying "accepted."    Typically, that email will have

21   case identifying information that would have allowed us

22   probably to figure it out, but that was never offered.

23                  THE COURT:   If you'll recall, I asked that

24   question yesterday.

25                  The problem I have, Mr. Lipscomb, is that all


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                     15

1    of these cases all address attempts to invoke the appellate

2    jurisdiction.    And in all the cases, the appellate court

3    find that the parties -- regardless of which error it is,

4    type of error, that they made a bona fide attempt to invoke

5    appellate jurisdiction and they allowed the appellate

6    process to continue and proceed on to the appeals court.

7                    But I -- the same question that Mr. Loree ran

8    back to the office and asked you is the question and the

9    argument that Mr. Leibowitz made is that I don't have the

10   power.   I did not have the power on the 10th, which you

11   talked about vesting of jurisdiction.   My problem is that I

12   think that when the deadline passed, that I had been

13   de-vested jurisdiction on the 8th of April.

14                   With regards to the technical error, and

15   frankly, perhaps, this is the case that will allow the

16   Fourth Court to define when you make a bona fide attempt to

17   file with our new electronic system and mistakes happen,

18   that you should be given the benefit of the doubt.   But from

19   a technical standpoint, I did ask about the email yesterday,

20   and you do receive an email.   And she said she did not

21   receive an email.

22                   And when you receive only one document back

23   when you have tried to file two documents, that would be

24   your first clue that something was wrong.

25                   It was a Monday, and as Mr. Leibowitz pointed


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                   16

1    out yesterday, you can check the docket at any time to see

2    if your document ended up getting filed, which is why I

3    asked about the email because the email comes back and lets

4    you know which cause number and whether or not it was

5    accepted or not.   And if the clerk was -- or the paralegal

6    was following the proper procedure, she needed to have

7    filed -- made two attempts, one under the old cause number

8    and then a second filed under the new cause number as if it

9    was a totally different lawsuit and she would have received

10   back two file stamped copies.

11                  MR. LIPSCOMB:   May I respond, Your Honor?

12                  THE COURT:   Yes.

13                  MR. LIPSCOMB:   My understanding of that system

14   is that it's not a document that's generated by a person,

15   but by a computer.   So you will not receive one.   It was not

16   done by the computer, but it was manually by the clerk's

17   office.

18                  MR. JACOB LEIBOWITZ:   His statement is no

19   proof of that.

20                  THE COURT:   Well, again, we didn't have any of

21   that evidence yesterday either way.    And that is part of the

22   problem.   I did try to contact both of the supervising

23   clerks, and I had one while the counsel was here to let them

24   know what they said, which was another alternative was to

25   have counter-filed the old fashioned way.


                          JUDITH A. STEWART, C.S.R.
                             45TH DISTRICT COURT
                                                                     17

1                   MR. LIPSCOMB:   And there was another issue

2    today, Your Honor.   We went in to file today, we were able

3    to file a response in both cases, which is now open.     So

4    it's changed that status in the meantime since you had your

5    call to the clerk's office.

6                   THE COURT:   Well, what I shared with them

7    yesterday is that it is never closed.    So the comment and

8    testimony by Ms. Villarreal that it was closed is

9    inconsistent with what I was told by the district clerk.

10   They never close the files, computer-wise or otherwise.

11                  I go back to -- I've lost jurisdiction on the

12   30th day.   And this is a memorandum opinion, but it does

13   seem to discuss the archaic position of Philbrook, but it

14   doesn't set it aside either.   So perhaps, this Fourth Court

15   needs to set it aside.   But I'm going to find that I do not

16   have -- did not have jurisdiction on the 10th, and vacate my

17   order which I think requires you to give back the money.

18                  MR. JACOB LEIBOWITZ:   Which is perfectly fine,

19   Your Honor.

20                  Your Honor, just so it's on the record.   Here

21   is the envelope it was sent in as well as the original check

22   and the letter that it was sent with.    So if the record

23   could reflect that I have now given back to counsel the

24   $7,460 that was sent.

25                  MR. LIPSCOMB:   And I'll reflect that we do


                          JUDITH A. STEWART, C.S.R.
                             45TH DISTRICT COURT
                                                                      18

1    have a copy of the check.     I'll let you have the letter for

2    your records.

3                    MR. JACOB LEIBOWITZ:    You have the original

4    check.

5                    MR. LIPSCOMB:   I have the original check.

6                    THE COURT:   And I want to make sure that all

7    the documents and exhibits are here.      So, Mr. Lipscomb,

8    since you weren't here yesterday, Mr. Loree put in

9    Defendant's Exhibit 1, and it was the motion, I believe.

10   And I'd ask the clerk to take a break from the record and

11   check that because I had the staff attorneys research this

12   this morning for me so they took some documents to look at

13   them as well.    So I want to make sure for the record.

14                   MR. JACOB LEIBOWITZ:    And before we go off the

15   record, Your Honor, I'm not sure if it matters, but could I

16   get a ruling on the hearsay on the affidavit.

17                   THE COURT:   Oh, yes.   That's sustained.

18                   MR. LIPSCOMB:   Your Honor, can I respond

19   briefly just for the record?     One, it's not be offered for

20   the truth of the matter being asserted.      The idea that the

21   clerk says she's going to file it or not when obviously the

22   clerk did not do so, there's no truth being asserted.       It

23   simply goes to the person's state of mind.

24                   Secondly, we do have the testimony from

25   Ms. Villarreal that is sworn to in the affidavit indicating


                           JUDITH A. STEWART, C.S.R.
                              45TH DISTRICT COURT
                                                                19

1    the computer system prevented her from filing it.

2                   THE COURT:   And she so testified to that

3    yesterday.

4                   MR. LIPSCOMB:   Thank you.

5                 (Proceedings concluded at 2:03 p.m.)

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                          JUDITH A. STEWART, C.S.R.
                             45TH DISTRICT COURT
                                                                   20

1    THE STATE OF TEXAS )
     COUNTY OF BEXAR    )
2

3              I, Judith A. Stewart, Official Court Reporter in

4    and for the 45th District Court of Bexar County, of Texas,

5    do hereby certify that the above and foregoing contains a

6    true and correct transcription of all portions of evidence

7    and other proceedings requested in writing by counsel for

8    the parties to be included in this volume of the Reporter's

9    Record, in the above-styled and numbered cause, all of which

10   occurred in open court or in chambers and were reported by

11   me.

12             I further certify that this Reporter's Record of

13   the proceedings truly and correctly reflects the exhibits,

14   if any, admitted by the respective parties.

15             I further certify that the total cost for the

16   preparation of this Reporter's Record is $543.00 and was

17   paid by Defendant.

18             WITNESS MY OFFICIAL HAND this the 12th day of

19   June 2015.

20
                              /s/ Judith A. Stewart
21                          Judith A. Stewart, CSR
                            Official Reporter
22                          Texas CSR 5471
                            Expiration: 12/31/15
23                          45th District Court
                            100 Dolorosa
24                          San Antonio, Texas 78205
                            (210)771-7732
25


                          JUDITH A. STEWART, C.S.R.
                             45TH DISTRICT COURT
APPENDIX E
Rule 21. Filing and Serving Pleadings and Motions, TX R RCP Rule 21




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 1. General Rules (Refs & Annos)

                                             TX Rules of Civil Procedure, Rule 21

                                    Rule 21. Filing and Serving Pleadings and Motions

                                                          Currentness


(a) Filing and Service Required. Every pleading, plea, motion, or application to the court for an order, whether in the form of
a motion, plea, or other form of request, unless presented during a hearing or trial, must be filed with the clerk of the court
in writing, must state the grounds therefor, must set forth the relief or order sought, and at the same time a true copy must be
served on all other parties, and must be noted on the docket.


(b) Service of Notice of Hearing. An application to the court for an order and notice of any hearing thereon, not presented during
a hearing or trial, must be served upon all other parties not less than three days before the time specified for the hearing, unless
otherwise provided by these rules or shortened by the court.


(c) Multiple Parties. If there is more than one other party represented by different attorneys, one copy of each pleading must
be served on each attorney in charge.


(d) Certificate of Service. The party or attorney of record, must certify to the court compliance with this rule in writing over
signature on the filed pleading, plea, motion, or application.


(e) Additional Copies. After one copy is served on a party, that party may obtain another copy of the same pleading upon
tendering reasonable payment for copying and delivering. Tx. Supreme Court Misc. Dkt. No. 13-9165 Court of Criminal
Appeals Misc. Dkt. No. 13-003


(f) Electronic Filing.


  (1) Requirement. Except in juvenile cases under Title 3 of the Family Code and truancy cases under Title 3A of the Family
  Code, attorneys must electronically file documents in courts where electronic filing has been mandated. Attorneys practicing
  in courts where electronic filing is available but not mandated and unrepresented parties may electronically file documents,
  but it is not required.


  (2) Email Address. The email address of an attorney or unrepresented party who electronically files a document must be
  included on the document.


  (3) Mechanism. Electronic filing must be done through the electronic filing manager established by the Office of Court
  Administration and an electronic filing service provider certified by the Office of Court Administration.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Rule 21. Filing and Serving Pleadings and Motions, TX R RCP Rule 21




  (4) Exceptions.


    (A) Wills are not required to be filed electronically.


    (B) The following documents must not be filed electronically:


       (i) documents filed under seal or presented to the court in camera; and


       (ii) documents to which access is otherwise restricted by law or court order.


    (C) For good cause, a court may permit a party to file other documents in paper form in a particular case.


  (5) Timely Filing. Unless a document must be filed by a certain time of day, a document is considered timely filed if it
  is electronically filed at any time before midnight (in the court's time zone) on the filing deadline. An electronically filed
  document is deemed filed when transmitted to the filing party's electronic filing service provider, except:


    (A) if a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a
    Saturday, Sunday, or legal holiday; and


    (B) if a document requires a motion and an order allowing its filing, the document is deemed filed on the date that the
    motion is granted.


  (6) Technical Failure. If a document is untimely due to a technical failure or a 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.


  (7) Electronic Signatures. A document that is electronically served, filed, or issued by a court or clerk is considered signed
  if the document includes:


    (A) a “/s/” and name typed in the space where the signature would otherwise appear, unless the document is notarized
    or sworn; or


    (B) an electronic image or scanned image of the signature.


  (8) Format. An electronically filed document must:


    (A) be in text-searchable portable document format (PDF);



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Rule 21. Filing and Serving Pleadings and Motions, TX R RCP Rule 21




     (B) be directly converted to PDF rather than scanned, if possible;


     (C) not be locked; and


     (D) otherwise comply with the Technology Standards set by the Judicial Committee on Information Technology and
     approved by the Supreme Court.


  (9) Paper Copies. Unless required by local rule, a party need not file a paper copy of an electronically filed document.


  (10) Electronic Notices From the Court. The clerk may send notices, orders, or other communications about the case to the
  party electronically. A court seal may be electronic.


  (11) Non-Conforming Documents. The clerk may not refuse to file a document that fails to conform with this rule. But the
  clerk may identify the error to be corrected and state a deadline for the party to resubmit the document in a conforming format.


  (12) Original Wills. When a party electronically files an application to probate a document as an original will, the original
  will must be filed with the clerk within three business days after the application is filed.


  (13) Official Record. The clerk may designate an electronically filed document or a scanned paper document as the official
  court record. The clerk is not required to keep both paper and electronic versions of the same document unless otherwise
  required by local rule. But the clerk must retain an original will filed for probate in a numbered file folder.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Sept. 20, 1941, eff. Dec. 31, 1941; Aug. 18, 1947, eff. Dec. 31, 1947;
July 11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; April 24, 1990, eff. Sept. 1, 1990; Dec. 11, 2013, eff. Jan.
1, 2014; Aug. 28, 2015, eff. Sept. 1, 2015.


Vernon's Ann. Texas Rules Civ. Proc., Rule 21, TX R RCP Rule 21
Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure are current with amendments received through
September 1, 2015. Bar Rules, Rules of Disciplinary Procedure, Code of Judicial Conduct, and Rules of Judicial Administration
are current with amendments received through September 1, 2015. Other state court rules and selected county rules are current
with rules verified through June 1, 2015.

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
