Villa Dijon Condominium Association, Inc. and Implicity Management Company v. Mary Winters and Mila Cheatom ( 2015 )

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