Villa Dijon Condominium Association, Inc. and Implicity Management Company v. Mary Winters and Mila Cheatom

Mary Winters and Mila Fourth Court of Appeals San Antonio, Texas October 1, 2015 No. 04-15-00342-CV VILLA DIJON CONDOMINIUM ASSOCIATION, INC. and Implicity Management Company, Appellants v. Mary WINTERS and Mila Cheatom, Appellees From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-03926 Honorable John D. Gabriel, Jr., Judge Presiding ORDER In this appeal of a default judgment, on September 2, 2015, Appellees Mary Winters and Mila Cheatom (plaintiffs below) filed a motion to dismiss the appeal for want of jurisdiction. They argued that Appellants’ notice of appeal was not timely filed because the motion for new trial was not filed under the proper cause number and did not extend the time to file the notice of appeal. The clerk’s record shows the default judgment was signed on March 9, 2015; Appellants’ motion to set aside the default judgment and motion for new trial—which contained both the original and severed cause numbers—was filed on April 6, 2015; the motion was granted on April 20, 2015; Appellees’ motion for rehearing of the motion to set aside and motion for new trial was heard on April 30 and May 1, 2015; and Appellants filed their notice of appeal on June 3, 2015, less than ninety days after the judgment was signed. See TEX. R. APP. P. 26.1(a)(1). On September 10, 2015, we ordered Appellants Villa Dijon Condominium Association, Inc. and Implicity Management Company to show cause why this appeal should not be dismissed for want of jurisdiction. On September 25, 2015, Appellants filed a response. Appellants’ response points us to the clerk’s record which shows the motion to set aside the default judgment and for new trial was filed within thirty days of the judgment and the motion caption included both the original and severed cause numbers. The trial court clerk filed the motion in the original cause number but not in the severed cause number. Despite the trial court clerk’s apparent error, we conclude Appellants’ motion for new trial and notice of appeal were “‘a bona fide attempt to invoke the appellate court jurisdiction.’” See Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex. 1994) (quoting Mueller v. Saravia, 826 S.W.2d 608, 609 (Tex. 1992)); Tex. G & S Invs., Inc. v. Constellation Newenergy, Inc., 459 S.W.3d 252, 257 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Our September 10, 2015 show cause order is satisfied; Appellees’ motion to dismiss is DENIED. We REINSTATE the appellate deadlines and set Appellants’ brief due within THIRTY DAYS of the date of this order. _________________________________ Patricia O. Alvarez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of October, 2015. ___________________________________ Keith E. Hottle Clerk of Court