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