930505.20130509/2288018.1

Case No. 04-15-00676-CV 

IN THE FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

Jose George, Matilde D. George, and Elaine George, Appellants

v.

Compass Bank, Appellee

From Cause No. 2014-CI-03773

(severed Cause No. 2015-CI-12375) 

45th Judicial District Court, Bexar County, Texas

The Honorable Solomon Casseb, III, presiding

Motion to Dismiss for Lack of Jurisdiction

Appellee, Compass Bank (“Compass Bank”), moves to dismiss this appeal 

for lack of jurisdiction. 

Appellants Jose George, Matilde George, and Elaine George (“Appellants”)

filed a notice of appeal on October 27, 2015, in Cause No. 2014-CI-03773, Jose 

George v. Jose Alberto George, et al.; in the 45th District of Bexar County, Texas.

See Exhibit A. There is no final judgment in that case.

The notice of appeal purports to appeal from a “judgment and related orders 

signed on July 30, 2015” and an order signed on September 24, 2015. The notice of 

appeal omits specific mention of the trial court’s order, also signed July 30, 2015, 

ACCEPTED

04-15-00676-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

12/18/2015 4:36:32 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 12/18/15 4:36:32 PM KEITH E. HOTTLE Clerk
2

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severing “all claims by and between” Compass Bank and Appellants into the newly 

designated Cause No. 2015-CI-12375, styled Jose George v. Compass Bank (the 

“severed case”). See id.; see also Exhibit B.

If Appellants intended to appeal from the judgment in the severed case, the 

appeal is not timely. Appellants did not file a notice of appeal within thirty days 

following the July 30, 2015 orders. See Tex. R. App. P. 26.1; see also Verburgt v. 

Dorner, 959 S.W.2d 615, 615 (construing predecessor to Rule 26.1). Appellants did 

not file any post judgment motion in the severed case within thirty days following the 

July 30, 2015 orders. See Tex. R. App. P. 26.1(a). Regardless whether Appellants 

intended to appeal Cause No. 2014-CI-03773 (no final judgment) or Cause No. 

2015-CI-12375 (no timely notice of appeal), this Court is without jurisdiction. See, 

e.g., Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985). 

In Philbrook, the Texas Supreme Court was presented with similar facts: 

Philbrook sued several parties, one of whom failed to timely answer. Id., 683 S.W.2d

at 379. Philbrook’s claims against that defendant were severed and a default 

judgment entered in the severed cause. Id. Nine days after default judgment was 

signed in the severed cause, the defaulting defendant, Owens-Illinois, filed its answer 

in the original cause. Thereafter, Owens-Illinois became aware of the default 

judgment and filed a motion for new trial. This motion, however, was filed in the 

original cause, not the severed cause. The trial judge nevertheless considered the 
3

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motion as if filed in the severed cause and signed an order setting aside the default 

judgment. The order was signed fifty-three days after the default judgment. Id. The 

Texas Supreme Court held that, because the motion for new trial was filed in the 

wrong cause, it did not operate to extend the court’s plenary power over its judgment 

beyond the thirty days prescribed by Tex. R. Civ. P. 329b(d). Philbrook v. Berry, 683 

S.W.2d at 379.

Here, Compass Bank obtained partial summary judgment on all claims by and 

between itself and Appellants and, on the same day, obtained an order of severance 

assigning a new cause number to the severed case. Exh’s B, C.

1 Like the defendant in 

Philbrook, Appellants filed a post-judgment motion (to modify) in the original 

action, but no such motion in the severed cause. Philbrook, supra. Applying

Philbrook to this case, because Appellants’ motion was filed in the wrong action, “it 

did not operate to extend the court’s plenary power over its judgment See Id. As the 

Texas Supreme Court said in Philbrook, “In addition to being filed timely, the 

motion for new trial must be filed in the same cause as the judgment the motion 

 1 Appellants were aware of the severance order on July 30, 2015. That order, along with 

the order granting summary judgment and the order approving interpleader, was signed by Judge 

Alcala on July 30, 2015, following an oral hearing at which counsel for Appellants and counsel 

for Compass Bank were present. The courtroom clerk provided copies of the signed orders to 

both attorneys and, on the same day, the District Clerk stamped the newly assigned cause 

number on the order of severance. See Exh’s B, C. The District Clerk’s “Case Summary” 

indicates notice of the severance to counsel on August 4, 2015. See Exh. D. By letter dated 

August 7, 2015, referencing both the main and severed case numbers, Compass Bank sent 

interpleader funds to the District Clerk with an emailed copy sent to Appellants’ counsel. See 

Exh. E. 
4

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assails.” Id. (citing Buttery v. Betts, 422 S.W.2d 149 (Tex. 1967); see also Levin v. 

Espinosa, 03-14-00534-CV, 2015 WL 690368 at *1 (Tex. App.—Austin Feb. 13, 

2015, no pet.).

The same day the trial court granted Compass Bank’s motion for partial 

summary judgment, it also granted the severance, creating a new case with a new

cause number, and styled Jose George v. Compass Bank. Exh. B. By terms of the 

severance order, the trial court directed the clerk to place the partial summary 

judgment, an order granting interpleader and, “this Order Granting Severance” in the 

new case file. Exh. B. The severance order expressly states that the “summary 

judgment granted in favor of Compass Bank is now final,” and the “Order of 

Severance is final and disposes of the severed case.” Id.2 Similarly, the partial 

summary judgment expressly references the “contemporaneously executed severance 

order” rendering “this Judgment” final and appealable. Exh. C. Notwithstanding the 

clear language and effect of trial court’s orders, Appellants did not file any postjudgment motion in the severed action (Cause No. 2015-CI-12375) and did not file a 

notice of appeal within thirty days after July 30, 2015. Because Appellants did not 

 2 The appellate timetable runs from the signing date of the order that makes a judgment 

final and appealable. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (citing 

Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994)); see also In re K.F., 

351 S.W.3d 108, 112-13 (Tex. App.—San Antonio 2011, no pet.) (“A judgment that disposes of 

all parties and issues in one of the severed causes is final and appealable.”) (citing Hall v. City of 

Austin, 450 S.W.2d 836, 837–38 (Tex. 1970)). The severed case is the case in which there is a 

final judgment; the severance order signed July 3, 2015, commenced running of the appellate 

timetable.
5

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timely invoke this Court’s jurisdiction, their appeal should be dismissed. See 

Philbrook v. Berry, 683 S.W.2d at 379; Levin v. Espinosa, 2015 WL 690368 at *2.

This Court most recently applied Philbrook in Garza v. CMH Homes, a 2002 

case. See Garza v. CMH Homes, Inc., 04-01-00845-CV, 2002 WL 31465810, at *2, 

note 1 (Tex. App.—San Antonio Nov. 6, 2002, no pet.).

3 The Court noted that the 

Texas Supreme Court’s holding in Philbrook has been questioned in the perfectionof-appeal context for purposes of determining whether the appellate deadline is 

extended if a motion for new trial is filed in the wrong cause number. See id. The 

Court referenced City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992)

(per curiam), and its own 1997 decision in Matlock v. McCormick, 948 S.W.2d 308, 

310 (Tex. App.-San Antonio 1997, no pet.). Garza v. CMH Homes, Inc., supra. This 

case is distinguishable from both.

In City of San Antonio, on the deadline for perfecting appeal, the City filed a 

post-judgment motion to modify or correct judgment along with its notice of appeal. 

The City used the proper style, Abraham Rodriguez and Alicia Rodriguez v. City of 

San Antonio, but the wrong cause number on both. In connection with a telephone 

inquiry about the “right” case number, a deputy clerk first found no notice of appeal 

and no post-judgment motion. On further investigation, she discovered the 

 3 See also Luera v. Basic Energy Services, Inc., 04-15-00466-CV, 2015 WL 7271091 at *1 

(Tex. App.—San Antonio Nov. 18, 2015, no. pet. h.), granting a similar motion to dismiss 

without reference to Philbrook.
6

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instruments filed in the “wrong” case. After discussion with a supervisor, the deputy 

clerk drew a line through the wrong number and substituted the correct one on both 

instruments. She then contacted the City’s attorneys to notify them of the mistake and 

to inform them that the correction had been made and that refiling was not necessary. 

See City of San Antonio v. Rodriguez, 828 S.W.2d at 417. 

The court of appeals granted the Rodriguez’s motion to dismiss for lack of 

jurisdiction relying on Philbrook. See id. at 418. The Texas Supreme Court 

disagreed, writing that “a court of appeals has jurisdiction over an appeal when the 

appellant files an instrument that is ‘a bona fide attempt to invoke appellate court 

jurisdiction.’” Id. (quoting Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, 

Inc., 813 S.W.2d 499, 500 (Tex. 1991) (per curiam)). The City’s notice of appeal, 

filed within 30 days after the judgment, was the basis for appellate jurisdiction in City 

of San Antonio. Id.; see also City of San Antonio v. Rodriguez, 810 S.W.2d 405, 406 

(Tex. App.—San Antonio 1991), rev’d, 828 S.W.2d 417 (Tex. 1992). Appellants did 

not file either a post-judgment motion or a notice of appeal within 30 days of the 

summary judgment order or the severance. This separate basis for appellate 

jurisdiction—a timely filed bona fide attempt to invoke jurisdiction—is absent from 

the instant case. 

Because it found the City’s otherwise timely notice of appeal was sufficient to 

give the court of appeals jurisdiction, the Texas Supreme Court “h[e]ld that the City’s 
7

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notation of the incorrect cause number on its notice of appeal” did not defeat that 

jurisdiction. City of San Antonio v. Rodriguez, 828 S.W.2d at 418.

Further distinguishing City of San Antonio, it was not a severance case and,

unlike the City, Appellants in this case did not use some totally alien cause number. 

They filed their motion to modify in the main case using its caption and its number, 

one of three cause numbers associated with this controversy: (i) the main case, (ii) a 

2014 severance and final disposition of claims involving “Jose Alberto George,” and,

(iii) the July 30, 2015 severance and final disposition of claims involving Appellants

and Compass Bank. Far more like Philbrook than City of San Antonio, “the different 

cause numbers were crucial to the proper management of the [three] cases.” See City 

of San Antonio, 828 S.W.2d at 418 (distinguishing that case from Philbrook).

In the 1997 Matlock v. McCormick case, which is a severance case, this Court

held that Matlock timely perfected her appeal by filing a motion for new trial in the 

main case. See Matlock v. McCormick, 948 S.W.2d 308 at 310. The holding is based 

on the Court’s rationale that Matlock’s motion for new trial was a bona fide attempt 

to invoke appellate court jurisdiction. Id. First, in this case there is no instrument that 

can possibly be considered an attempt to invoke this Court’s jurisdiction that was 

timely filed within 30 days after July 30, 2015. And, importantly since the Court’s 

decision in Matlock, the Texas Supreme Court has made it clear that a motion for 

new trial “is not an instrument that may be considered a bona fide attempt to invoke 
8

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the appellate court’s jurisdiction.” In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005); 

see also In re J.M., 396 S.W.3d 528, 530–31(Tex. 2013) (motion for new trial that 

does not address appellate court does not qualify as a substitute for a notice of 

appeal). Therefore, because no timely notice of appeal (or other instrument 

attempting to invoke the Court’s jurisdiction) was filed, the Court should dismiss the 

appeal.

The most recent decision from any court of appeals on the continuing efficacy 

of Philbrook appears to be Levin v. Espinosa from the Austin court. See Levin v. 

Espinosa, 03-14-00534-CV, 2015 WL 690368 (Tex. App.—Austin Feb. 13, 2015, no 

pet.). There, just like here, “[t]he only question to be answered is whether the [July 

30, 2015] motion for new trial, filed in the wrong cause number, acted to extend the 

time to file a notice of appeal in the new, severed cause.” Id. at *1. Relying primarily 

on Philbrook (see also Texas Emp’rs Ins. Ass’n v. Martin, 347 S.W.2d 916, 917 

(Tex. 1961)), the Austin court held that the improperly filed post-judgment motion

did not extend the appellate deadline, and the court dismissed the appeal for want of 

jurisdiction. Id. On substantially similar facts, this Court should do the same.

In deciding to dismiss the appeal for lack of jurisdiction (the same relief 

Compass Bank seeks in this case), the Levin court discussed (and distinguished) an

array of post-Philbrook cases that “have muddied the waters in this area.” Levin, 

2015 WL 690368, at *2 (discussing Mueller v. Saravia, 826 S.W.2d 608 (Tex. 1992); 
9

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City of San Antonio, supra; McRoberts v. Ryals, 863 S.W.2d 450, 451 (Tex. 1993);

and Blankenship v. Robins, 878 S.W.2d 138, 138 (Tex. 1994)). Each is equally 

distinguishable from this case.

For example, in Mueller, the trial court rendered a take-nothing judgment, then 

severed Mueller’s claims against Saravia into a new cause number. Mueller, 826 

S.W.2d at 609. Mueller filed a timely motion for new trial in the original cause 

number seeking new trial in both causes and successfully sought re-consolidation of 

the causes. Id. The Texas Supreme Court held that, despite being filed in the original 

cause number, the motion for new trial extended Mueller’s appellate deadline in the 

severed cause because Philbrook required only that the motion for new trial be filed 

in the same cause as the judgment being assailed. Id. The court also noted that the 

severed cause number was nowhere to be found in the clerk’s record and that the 

parties and the trial court had proceeded as if the severance had not happened, 

concluding that Mueller should not be punished for failing to comply with a 

severance order ignored by both parties and the trial court. Id. Here, in contrast, the 

order of severance includes the newly assigned cause number; the order of severance 

specifically references the partial summary judgment signed the same day; and, the 

partial summary judgment expressly references the contemporaneously signed order 

of severance. See Exh’s B, C. Neither the court nor the parties (other than George)

ignored the severance.
10

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As discussed above, in City of San Antonio, the appellant timely filed a notice 

of appeal, demonstrating “a bona fide attempt to invoke appellate court jurisdiction.”

See City of San Antonio, 828 S.W.2d at 418. In this case, no notice of appeal was 

filed within 30 days and, Appellant’s motion to modify “is not an instrument that 

may be considered a bona fide attempt to invoke the appellate court’s jurisdiction” as 

a matter of now settled law. In re K.A.F., supra. In this case, the erroneous cause 

number used by Appellant’s is one of three associated with the controversy, unlike 

City of San Antonio where the number had nothing to do with any part of the case. 

See City of San Antonio, supra. 

Likewise, McRoberts v. Ryals, 863 S.W.2d 450 (Tex. 1993) is distinguishable 

from this case. In that case, the trial court signed a judgment that included a 

severance order, but the trial court clerk did not assign a new cause number to the 

severed action until two months later. 863 S.W.2d at 451. In the meantime, 

McRoberts filed a motion for new trial in the original cause number. Id. About two 

weeks after the new number was assigned, McRoberts perfected his appeal under the 

original cause number. Id. The supreme court observed that because McRoberts 

could not be expected to file his motion for new trial under a nonexistent cause 

number, his motion operated to extend his time to appeal. Id. at 454–55. It further 

held that McRoberts’s attempt to appeal, filed in the original cause, was proper 

because the judgment he sought to appeal was under the original cause number, 
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noting that notice of the new cause number was not provided to the parties when it 

was finally assigned. Id.

As the Texas Supreme Court held, McRoberts was distinguishable from 

Philbrook, supra, (and from Richie v. Ranchlander Nat’l Bank, 724 S.W.2d 851 

(Tex. App.—Austin 1986, no writ)), and from Buttery v. Betts, supra. In McRoberts, 

a severed cause number “did not exist when the motion was due.” McRoberts v. 

Ryals, 863 S.W.2d at 454. In this case, like the cases the court distinguished in 

McRoberts, “the severed or separate cause number already existed when the motion 

for new trial was due” and Appellants’ counsel—unlike McRoberts—did not “face[]

the impossible dilemma of having to timely file his motion for new trial under a 

nonexistent cause number.” McRoberts, 863 S.W.2d at 455. The severed case cause 

number is in the severance order; the severance order specifically references the 

summary judgment; and, the summary judgment specifically references the 

“contemporaneously executed” order of severance. See Exh’s B, C.

The Blankenship case is completely different from this case. In Blankenship,

the trial court granted summary judgment against Blankenship and ordered that all 

remaining claims should be severed into a new cause number. Blankenship v. 

Robbins, 878 S.W.2d 138, 138 (Tex. 1994). Contrary to the order, the trial court clerk 

instead assigned a new cause number to the summary judgment, leaving the 

remaining claims in the original cause. Id. The trial court and parties then proceeded 
12

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in accordance with the clerk’s actions, and Blankenship timely filed his motion for 

new trial and appeal bond in the severed cause. Id. The Texas Supreme Court held 

that Blankenship should not be punished for not complying with a severance order 

that was also ignored by Robbins and the trial court and that Blankenship’s filings, 

including the appeal bond, in conformity with the clerk’s actions were a bona fide 

attempt to invoke appellate jurisdiction. Id. 878 S.W.2d at 139. There is no such 

miscommunication in this case. Rather, Appellants, alone, ignored the import of the

severance order signed July 30, 2015. And, as above, there is no timely filed appeal 

bond or other filing that can possibly be construed as a bona fide attempt to invoke 

this Court’s appellate jurisdiction. See In re K.A.F., supra.

In Levin, Justice Field joined in the majority opinion and found it appropriate 

to write a separate concurring opinion. (Justice Pemberton joined both the majority 

and Field’s concurrence). As to the precedential import of Philbrook, Justice Field

first observes, “The Court’s opinion is consistent with the principle that intermediate 

courts of appeals are bound to follow the opinions of the supreme court in civil cases 

and that only the supreme court can overrule its own decisions.” Levin, 2015 WL 

690368, at *3, Field, J., concurring (citing Lubbock Cnty. v. Trammel’s Lubbock Bail 

Bonds, 80 S.W.3d 580, 585 (Tex. 2002). Noting the “trend toward putting substance 

over procedure” when a court is assessing its jurisdiction, Justice Field, nonetheless, 

concurs that recent clarification that a motion for new trial may not be considered a 
13

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bona fide attempt to invoke appellate jurisdiction means “Philbrook appears to 

govern most, if not all, cases concerning extension of the notice-of-appeal deadline 

when a motion for new trial is filed using an incorrect cause number.” Id.

The reasoning in Levin is sound and, as suggested by Justice Field, Philbrook

governs this case. The final judgment and the contemporaneously signed severance 

order are unmistakably clear. Compass Bank obtained summary judgment in its favor 

on July 30, 2015. On the same day, all claims disposed of by that judgment were 

severed into Cause No. 2015-CI-12375, making the judgment final and appealable. 

Despite notice, Appellants did not file a post-judgment motion in Cause No. 2015-

CI-12375. The appellate timetable was not extended and Appellant’s notice of appeal 

was due within thirty days. Tex. R. App. P. 26.1. No notice of appeal has been filed 

in Cause No. 2015-CI-12375. Further, there is no final judgment in the “main case,” 

2014-CI-03773. See In re Thirty-Four Gambling Devices, 07-04-0548-CV, 2006 WL 

223749 at *2 (Tex. App.—Amarillo Jan. 30, 2006, no pet.) (“unlike Rodriguez, the 

present appeal does not simply fail to correctly identify the cause number of the 

judgment being appealed from, rather, it attempts to appeal a judgment that simply 

does not exist.) Accordingly, the Court is without jurisdiction in this appeal.

Compass Bank respectfully moves for dismissal of this appeal for lack of 

jurisdiction and for such other relief to which it is entitled.
14

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Respectfully submitted,

HIRSCH & WESTHEIMER, P.C.

By: /s/ Michael D. Conner

Michael D. Conner

mconner@hirschwest.com

State Bar No. 04688650

William P. Huttenbach

State Bar No. 24002330

phuttenbach@hirschwest.com

1415 Louisiana, 36th Floor 

Houston, Texas 77002

Telephone: (713) 220-9162

Facsimile: (713) 223-9319

Attorneys for Appellee Compass Bank
15

930505.20130509/2288018.1

Certificate of Conference

I spoke to Alberto Alarcon, on December 18, 2015 and he opposes this 

motion.

 /s/ Michael D. Conner

Michael D. Conner

Certificate of Compliance

I certify that this document complies with the type-volume limitation of Tex. 

R. App. P. 9.4. This document is in a proportionally spaced typeface using 

Microsoft Word 2013 with 14 point Times New Roman font.

 /s/ Michael D. Conner

Michael D. Conner

Certificate of Service

I hereby certify that on this 18th day of December, 2015, a true and correct 

copy of the foregoing document was served as follows: 

Alberto Alarcon

Hall, Quintanilla, & Alarcon

P.O. Box 207

1302 Washington

Laredo, TX 78042-0207

Via E-Service

/s/ Michael D. Conner

Michael D. Conner
Case No. 04-15-00676-CV

IN TFIE FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

Jose George, Matilde D. George, and Elaine George, Appellants

Compass Bank, Appellee

v

Affidavit of William P. Huttenbach

STATE OF TEXAS

COLINTY OF HARRIS

BEFORE ME, the undersigned authority, on this day personally appeared 'William P. Huttenbach, known to me to be the person whose name is subscribed

below, and who, being by me duly sworn, stated the following:

1. My name is William P. Huttenbach. I am over the age of twenty-one (21)

years and, I am competent to testiÛz. Each fact stated in this affidavit is true

and correct and within my personal knowledge.

2. I am an attorney of record for Compass Bank ("Compass Bank") in the above

referenced lawsuit, and was lead counsel in the trial court.

3. I have read Compass Bank's Motion to Dismiss for Lack of Jurisdiction to

which this affidavit is appended. Each fact stated in the motion is true, correct,

and within my personal knowledge.

4. Attached to this affidavit are true copies of following documents, each of

which was obtained from the Bexar County District Clerk:

Exhibit A - Notice of Appeal filed by Jose George, Matilda D. George,

and Elaine George in Cause No. 2014-CI-03173;

$

$

$

93 05 05.20 I 30509 /228249 0. t
Exhibit B - Order Granting Severance of All claims By and Between

Compass Bank and Plaintiff, Jose George, and Third-Party

Defendants, Matilda George and Elaine George, signed

July 30, 2015, and entered in Cause No. 2015-CI-12375

on July 30,2015;

Exhibit C - Partial Summary Judgment on All Claims By and Between

Plaintiff and Third Party Defendants Matilda George and

Elaine George and Compass Bank, signed July 30, 2015,

in Cause No. 2014-CI-03773;

Exhibit D - Notice in Cause No. 2014-CI-03773, notiffing counsel for

the respective parties of the severance and the newly

assigned cause number and style for the severed matter,

Cause No. 2015-CI-12375; Jose George, et al. vs.

Compass Bank.

I attended the July 30,2015, hearing in the Bexar County District Court at

which Judge Alcala signed the Partial Summary Judgment, Exh. C, and the

Order Granting Severance, Exh. B. Counsel for Jose George, Matilda D.

George, and Elaine George, Mr. Alberto Alarcon, also was present.

Also attached to this affìdavit as Exhibit E is a true copy of a letter dated

August 7, 2015, together with true copies of the attachments sent with the

letter, which I prepared and sent to the Bexar County District Clerk on August

7 ,2015, with copies of the same sent as indicated thereon, including to counsel

for Jose George, Matilda D. George, and Elaine George, Mr. Alberto Alarcon.

FURTHER AFFIANT SAYETH NOT

5

6

W,// H,lk

SWORN TO AND

Huttenbach on De

William P. Huttenbach

SCRIBED before me by the said William P.

9305 05.20 I 30 509 t228249 0. 1

Notary c in and for the State of Texas
FILED

101271201512:30:00 PM

Donna Kay McKinney

Bexar County District Clerk

Accepted By: Consuelo Gomez

cAusE No. 2014 -Cr-0377 3

JOSE GEORGE, IN THE, DISTRICT COURT

V. BEX,A.R COUNTY, TE,XAS

JOSE ALBERTO GEORGE , et 

^1.

45TH JUDICIAL DISTRICT

NOTICE, OF APPE,AL

TO THE HONOR A.BLE JUDGE OF SAID COURT

Jose George, Matilde D. George, and Elaine George, appellants, timely file this

notice of appeal from the f udgment of the Court and related orders sþed on July 30,

201.5, to wit: Partsal Summary Judgment on All Claims by and Between Plaintiff and

Third-Patty Defendants Matilde George and Elaine George and Compass Bank and

Order Granting Compass Bank's Second Motion to Approve Interpleader. Appellants

also appeal the subsequent order signed on or about September 24,201,5, conditioning

the withdrawzl of all the funds interpleaded on the posting of a supersedeas bond for

future attorney's fees.

This notice of appeal and appeal encompasses the fìnal judgment as well as all

orders and rulings adverse to the appellants that were incorporated or merged into the

fìnal judgment and all subsequent advetse ruling dealing with withdrawal of funds and

supersedeas bond.

This appeal is taken to the Fouth Coutt of Appeals in San Antonio, Texas.

ñ

.J

s

s

s

1

EXHIBIT

'o

o

õ

t

6

Dated: Octobet 27 ,2015
Respectfully submitted,

HALL, QUINTANILI,A. & AI-ARCON,

PLLC

/s/Alberto Alarcon

Alberto Alarcon

State Bar No. 00968425

7302 Washington

P.O. Box 207

Laredo, Texas 7 8042-0207

Telephone No. (956) 723 5527

Facsimile No. (956) 723 8168

Email aalarcon@sbcglobal.net

2
CERTIFICATE OF SERVICE

On this 27'h day of October, 201,5, a true and correct copy of the foregoing

pleading was served on the following by the method described below their name an

address:

SØilliam P. Huttenbach

1 41, 5 Loutsiana, 36ù Floor

Houston, Texas 77002

Via email: phuttenbach@hirschwest. com

/s/ Alberto

Alberto Alatcon

J
2015-CI-12375

O45TH JUI)ITINL DISTRICT COURT

.JOST TTORCT [T RL U$ Í][]NPRSS BRNK

ORTE FILTD ø1/3ø/2Ø15

JOSE GEORGE TN THE DIS'I'RICT COUIìT'OF

VS. BEXAR COUNTY,I'EXAS

JOSE AI",BER'|O GEOIIGE, et al. 45TH JUDICIAL DIS]'RICT

ORDER GRT{NTING SEVERANCB OI'ALL CLAIMS BY AND BETWEEN COMPASS

RANK AND PLAINTIFF. JOSE GEORGE. AND THIRD-PARTY DNFENDANTS.

MATTLDE GEORGE AND ALAINE GEORG}: IPLAINTITF AND TIIIRD-PARTY

DDFNNDANTS \ryILL BE COLLACTIVELY RTTFERRND TO AS "RASPONDENTSIII

On this day came on to be hearcl Compass Bank's motion to sever contained in Compass

Bank's Motion tbr Partial Summary Judgment against Respondents. The Coutt, having considercd

the motion on lile and thc arguments of cotnsel, is of the opinion thât said motion should bc

GRANTED. [t is, thereforc,

ORDERIID that all claims by ard between'l'hird-Party Defendant Clompass Bank d/b/a

BIIVA Compa.ss, inconcctly named us BBVA Compass Bank ("Cr)mpsss Brnk") and

Respondents be severed from the remaining claims in this matter.

IT IS FURTHER ORDERED that the remaining claims by and br:tween Plaintifti Jose

Gcorge, and the other Defendants, and cross-claims between'l'hird-Party Plaintiff Jose Alberto

George, ¿urcl the other patties will RËMAIN PENDING.

2Øls-ct-1237s

The severed matter will be Cause No. ¿rnd will be styled Jose George v"

Compass Bank. 'the Clerk is directed to create this new file and all claims by and between

Compass Bank and Respontlenls are SEVERED frclrn the remaining claims in this lawsuit.

All court costs in connection with the case being severed are to be paicl by Compass Bank.

lhe Cllerk of the court is instructed to copy the following pleadings to be sevcred and

$

$

$

$

$

new file:

930505.20t 30509nt 9t6ó2. I

EXHIBIT

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Partial Summary Judgment on all Claims By and Between Compass Ba¡k and

Plaintiff and Third-Party Defendants;

The Court Order granting Compass Bank's Second Motion to Allow Interpleader;

and

this Order Granting Severance.

The Court incorporates by reference all documents in the original lile. The Courl also notes

case arühority holding that all documents filed in a oil¡se before û severânce are part of the record

of the severed case. ,See New Hampshire Inç. Co, v. Tobias,80 S.ï/.3d 146 (Tex. App. 2002, no

pet.).

It is ALSO ORDERED THAT thc above-referenced summary judgnrent grantod in favor of

Compass Bank is now final.

It is ALSO ORDERED THAT the Orde¡ of Severance is final and disposes of the severed

case

Signcd on a 20r 5.

HONORABLE PRESIDING

APPROVDD AS TO F'ORM ONLY:

HIRSCH & WESTIIEIMER" P,C.

/sl William P. Hultenhach

WiltiamP. Huttenbach

State Bar No. 24002330

1415 Louisiana, 36th Floor

Houston, Texas 77002

713-220-9184 Direct

713-223-5181 Main

713-223-9319 Fax

Email : phuttenbach@hirschwest.com

ATTORNAYS FOR THIRD-PARTY

DEFENDAIYT COMPASS BANK

DfBtA BBVA COMPASS, TNCORRßCTLY

NAMED 3BVA COMPASS BANK

2.

3

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3

930505-20 I t0509/¿ I 93óó2. I
CAUSE NO. 20r 4-Cr-43773

JOSE GEORGE

vs.

JOSE ALBERTO GEORGE, et al.

$

$

$

$

$

IN THE DISTRICT COURT

BEXAR COUNTY, TEXAS

45TH JUDICIAL DISTRICT

PARTIAL SUMMARY JUDGMENT ON ALL CLAIMS BY AND BETWEPN

PLAINTIFF AND THIRD-PARTY DEFßNDANTS MATILDE GEORGE AND ELAINE

GEORGE AND COMPASS BANK

On this day came on to be heard Compass Bank's Motion for Summary Judgment against

Plaintiff, Jose George ("Plaintiff') and Third-Party Defendants Matilde George and Elaine George

(collectively "Third-Party Defendants"). For the reasons stated in said motion, this Court grants

a sunrmary judgment in favor of Compass Bank on all of Plaintiff s and Third-Party Defendants'

claims against Compass Bank and all of Compass Bank's claims against such parties'

IT IS THEREFORE, ORDERED, ADruDGED AND DECREED that Plaintiff ANd ThiTdParty Defendants shall take nothing on their claims against Compass Bank.

IT IS ALSO ORDERED, ADJUDGED AND DECREED that Compass Bank recover a

Judgment against Plaintiff and Third-Party Defendants, jointly and severally, in the amount of One

Hundred Thousand, Eight Hundred Thirty-Six and 55/100 Dollars ($100,836.55) for Compass

Bank's reasonable and necessary attorneys' fees, costs and expenses.

IT IS ALSO ORDERED, ADJUDGED AND DECREED that if PlAintiff ANd/Or Third.

Party Defendants file aNotice of Appeal, and Compass Bank ultimately prevails, Compass Bank

is awarded an additional $30,000.00 for additional reasonable and necessary attorneys' fees, costs

and expenses, and if any party appeals to the Texas Supreme Court and Compass Bank ultimately

prevails, Compass Bank is awarded an additional $25,000.00 in additional reasonable and

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necessary attomeys' fees, costs and expenses, and an additional $20,000.00 if the Texas Supreme

Court grants the writ.

IT IS ALSO ORDERED, ADruDGED AND DECREED that Compass Bank is awarded

post-judgment interest at the rate of 5%o per annum on the above-referenced amounts from the date

of this judgment until paid.

All relief not expressly granted herein by and between Plairitiff and Third-Party Defendants

and Compass Bank is denied. Due to a contemporaneously executed severance order, this

Judgment finally disposes of all claims by and between Plaintiff and Compass Bank and is

appealable. this is meant to be a Finat Judgment pursuant to the Texas Supreme Court's decision

in Lehmannv. Har-Con ,39 S. I 1 (Tex.2001).

Signed on &

APPROVED AS TO FORM ONLY:

HIRSCH & WESTHEIMER, P.C.

By /s/ Wílliam P. Huttenbqgll

WilliamP. Huttenbach

State Bar No. 24002330

1415 Louisiana, 36th Floor

Houston, Texas 77002

713-220-9184 Direct

713-223-5181 Main

713-223-9319 Fax

Email: phuttenbach@hirschwest.com

ATTORNEYS FOR THIRD-PARTY

DEF'ENDANT COMPASS BANK

D tBt A BBVA COMPASS, TNCORRECTLY

NAMED BBVA COMPASS BANK

J PRESIDING

n

930 s0s.20l 30 s09 nl 251 1 2.3
YS

JÛSE GEORGE

JOSE A GEORGE ET AL

August 04,201.5

\ryILLIAM P HUTTENBACH

1415 LOUISIAN.A. ST 36 FL

H0usTûN,TX17û02-?36û

Á.LBERTO ALARCON

r3O2 WASHTNGTON ST

L^4.REDû, TX 7804û-4¡145

below:

No. 2û14CI03773 ilffiffiffiffilllll

, 20r5cr1?375 -s00001

ln the District Court

4srH Judicial District

Bexar County, Texas

$

$

$

NTTICH

.4"n Order of Severance \ryäs entered under the above described câuse of action.

The newly assigned Cause Number and Style of the severed action is listed

Cause Number 2û15CIf æ75 Court 45rH

Style: JOSE çEORGE #T AL

vs.

COMFASS BÁ,NK .

Donna Kay MsKinney

Bexar County District Clerk

San Antonio, Texas 7E2û5

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.oõ

EXHI

DOCTJMENT SC"ANNEÐ .AS FÏLEÐ
VS

JOSE GAORGE

JOSE A GEORGE ET AL

;nlmgmffiffilllll

No.@lf!ffiJ, ., 2015CI123?5 --5øø6ø2 "/'

$

'$

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In the District Court

45rH J,rdi"ial District

Bexar County, Texas

August 04,2015

1VILLIAM P IIUTTENBACH

1415 LOUISIANA ST 36 FL

HOUSTON,TX77t02.736o

ALBERTO ALARCON

I3O2 \ryASIilNGTON ST

LARBDO, TX 78040-4445

NOTICE

An Order of Severance was entered under the above described caus€ of action.

The newly assigned Cause Number and Style of the severed action is listed

below:

Cause Number 20tSCIl237 5 Court 45t"

Style: JOSA GEçBGE ET AL

vs.

COMPASS BÄ.NK

Donna Kay MsKinney

Bexar County District Clerk

San Antonio, Texas 78205

DOCITMENT SC.ANI{ED AS FTI,ED
E I{IRSCH & WË5THËIMËR 1.713.220.9184

F.713.223,9319

phuttenbach@h i rschwest.com

August 7,2|'j.15

Via Certified Mail/RRR

No. 9414 7266 9904 2Ol3 3ll5 OS and Via E-File

Donna Kay McKinney,

Bexar County District Clerk

Paul Elizondo Tower

1O1 W Nueva, Suite 217

San Antonio, TX 78205-3411

Re: Cause No. 2Ol4-C\'OO3773: Jose George v. Jose Alberto George,

et al.; ln the 45th Judicial District Court of Bexar County, Texas.

Re: Cause No. 2015-Cl-12375; Jose George v, Jose Alberto George, et

al.: ln the 45th Judicial District Court of Bexar County, Texas.

Dear Ms. McKínney:

Enclosed please find a check in the amount of Seven Hundred Eighteen

Thousand Seven Hundred Twenty-Nine and 52/1OO Dollars ($718,729,52)

made payable to Bexar County District Clerk pursuant to the attached Order

granting Compass Bank's Second Motion to Allow lnterpleader. Pursuant to

the Order, Compass Bank closed all six (6) accounts, issued a check made

payable to Conipass Bank in the amount of One Hundred Thousand Eight

irunoreo rhirty-Six and 55/oo Dollars ($100,836.55), and Compass Bank has

kept that original check. I am also enclosing a copy of that check for the

Court's file. Rlso in compliance with that Order, Compass Bank then has

issued a check for the remaining balance of the remaíning accounts and has

províded it to you.

I am copyíng all parties on this letter to notify them of Compass Bank's

compliance with said Order.

i\ i t¿'t t,¡., ¡. [i'i): i--i.t, : :,!:1i.' / ;

141ó 1-orisiå'1ð 3ljtil iÏloÞr il¡)LrsiÐil, 'l-ex¿s 7700â 1, '/l:! 22-3 t:;l91 Ì¡irschv¿esír:ant

EXHIBIT

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93050s.20r30509Æ 1945s1. I
Donna Kay McKinney

August 7,2c-15

Page 2

call.

lf you have any other questions or comments, please do not hesitate to

Sincerely,

HrRscx & WEsrxEt¡¿eR, P,C.

By

W liam "Pat" Huttenbach

WPH/bd/enclosure

Via emailand U.S. Priority Mail

Via email

Via email

cc: Jose Alberto George, Pro Se

Alberto Alarcon

James G. Ruiz
CAUSE NO, 2014 -Cr-037 7 3

JOSE GEORGE

VS.

JOSE ALBERTO GEORGE, et al"

$

$

$

$

$

IN THE DISTRICT COURT

BBXAR COUNTY, TEXAS

45TH JUDICIAL DISTRICT

ORDER GRANTING COMPASS BANK'S

ËDCOND MOTION TO APPROVE INr.nrìp[,AADnR

On this date, came on to be heard, Cornpass Bank's Second Motion to Approve

Interpleacler. The Court GRANTS the motion and FINDS the following:

L On or about April 28,2014, each of the accounts contained the following posted

amounts:

Account No. {'*t8164, styled in the name of Jose George, posted balance

as of April 28,2Q14 Tbree Thousand Ninety'Six and 451100 Dollars

($3,096.45);

Account No. 'rr*'i9000, styled in the name of Jose George, posted balance

as of April 28,2014: Tlree Thousand Four Hundred Thi*y'Eight and

50/100 ($3,438,50);

Account No, ¡¡**9840, styled in the name of Matilde Diaz De George,

posted balance as of April 28,2014: Five Hundred Ttree Thousand Four

Hundred Ninoteen and 3 7/1 00 Dollars ($503,4 I 9. 3 7) ;

Account No, r'r"r'9395, styled in the name of MatildE D' George, posted

balance as of April 28,2014: Twenty Five Thousand Two and 99/100

Dollars (fi25,002,99);

Account No. *:r'*7770, styled in the name of Elaine George, posted

balance as of April 28, 2Al4t Two Hundred Fifty-One Thousand Six

Hundred Twenty-One and 891100 Dollars (825I,62L.89); and

Aocount No, +r'*7290, styled in the name of Elaine Oeorge, posæd

balance as of Apríl 28,2014t Thirty Thousand Four Hundred Sixteen and

69/100 Dollæs ($30,4 1 6.69).1

I Compass Bank previously had account nos, xxx9360, xxx0920, and xxx2094 but thoso acsounts have ro funds

remaining ín thc account and/or havs been closed.

^,

b.

c.

d.

e,

f.

930505.20130509/2 I 93621.1
Said amounts may have changed slightly due to interest, outstanding items, and/or routine bank

charges, such as monthly charges or early termination penalties,

2, The parties have represented that no other party could claim to be entitled to the

funds in dispute and/or a portion thereof.

IT IS THEREFORE ORDERED, ADJUDGED andDECREED as follows:

3. Within twenty (20) days of being presented with a signed copy of this Order,

Compass Bank shall retain the amount of One Hundred Thousand, Eight Hundred Thirty-Six and

55/100 Dollars ($100,836,55) as its reasonable and necessary attorneys' fees, costs and expenses.

4, Compass Bank will then close all of the above-referenced accounts (account

numbers xxxxxx8164, xxxxxx9000, xxxxxx9840, xxxxxx9395, xxxxxx7770, and xxxxxx7290)

and interplead the remaining amounts in all of the accounts into the registry of the Court, less

Compass Bank's attomeys' fees awarded herein. Said amount to be interpleaded may change

slightly due to interest, outstandíng itemsn andlor routine bank charges, such as monthly charges

or early termination penalties.

5. Compass Bank is discharged of any and all liability, if any, to Jose George, Jose

Alberto George, Matilde Diaz George alWa Matilde George, Elaine George and Fanny

Fenrandez Zacaúas with respeot to Account Numbers xxxxxx8164, xxxxxx9000, xxxxxx9840,

xxxxxx9395, xxxxxx7770, and xxxxxx7290), any checks deposited into the accounts, and/or

with respect to any other issues relating to the funds in the accounts, ffiy prior deposits into

and/or disbursements from said accounts and/or the fr¡nds that were deducted from Third-Party

Plaintiffs âccount and all alleged forgeries related thereto, After tendering the above monies

into the registry of the Court, Compass Bank is dismissed with prejudice from this lawsuit.

2

930505.20 I ^10i09/2 19362 r. r
6. Nothing in this Order affects claims by and between the other parties regarding

the amounts deposited into the Registry of the Courts (less Compass Bank's fees and costs), and

the remaining parties are able to bring claims against each other (and not Compass Bank)

regarding such facts and/or the parties can try to claim such flnds.

7, This Order does not affect any other accounts the parties may have with Compass

Bank and nothing in this Ordor would prevent other parties from doing future banking activity

and/or transactions as allowed under applicable law, such as opening new accounts and/or doing

other transactions pursuant to cunently open unrelated accounts.

8. Compass Bank will no longer be a party to this proceeding as it is being dismissed

with prejudice. The remaining parties are now free to rnake claims to the funds that have been

I

interpleaded and/or make other claims by and between the remaining parties.

Signed ,hi"%#y

.3dË'-

of 2015.

HONORA-BLE ruDGE PRESIDING

3

930505.20 I 30509/2t 93ó21.!
APPROVED AS TO FORM AND STIBSTAFTCE:

HIRSCH & VI/ESTI{EIMER" P.C.

/s/ Ílilltam P. Huttcnhach

WilliamP. Huttenbach

State Bar No . 24002330

Aaron E. Homer

State Bar No. 24057908

1415 Louisiana, 36h Floor

Houston, Texas 77002

Telephone: Q 13) 223-SL8l

Facsimile: Q 13) 223 -9319

Email phuttenbach@hirschwest.com

Email: alromer@hirschwest,com

ATTORNEYS F'OR TIIIRI}-PARTY

DEFEDIDANT COMPASS BANK

DlBl 

^BBVA 

COMPASS, INCORRECTLY

NAMED BBVA COMPASS BAFTK

4

930505,201 30J09i2193621. I
t"t'

ßBVA CcmPass

PAY

TO THE

BEXAR COUNÎY BISTRICT CLERK

-ti*:;ii.¡:;i' -i r:;j1 ':

CþIËOUE ÞE CAJA

Date/Fecha

9,$'- e ?\ r, ¡ "' 3u¿37 

ORDER OF Ë;ciË;þt este cheque a lo orden de

'r' sEvEN HUNDRED EIGHTEEN THOy!.4¡lo^:* '- sÉvEN *u*o*'ó iiÈÑil NIÑIDoLLARS AND s2 GENrs *'

Remitter/Remitente:-. BBVACOMPASSBANK

öä;ïìì;i'ö;7 ó åscr i pció n : cASE No' 20 1 4 -cr-037 73

i

0s/0ô2015 136

**-$718,729.52'**

I;iq[44 AUlÓFi?AÛÀ

r,50?f?5?ÊOil' r:oËe00rlåËt: t5¡ Sgtl ¡rr'

?ü$* BBVACompass

pAy COMPASS BANK

TO THE

ORDER OF

Paguese por este cheque a lo orden de

sAJ;JJ.Ïit',$ Siiå9"i¡i

C¡'IÊQUA ÐH C¡\JA

Date/Fecha: 08/0612015 136

*.* $1oo,8s6.ss ,,**

5t?37

." ONF HUNDR€D THOUSAND "''- EIGHT HUNÐRED THIRTY SIX DOLLARS AND 55 CENTS 

*"

Remitter/Rernitente:Description/Descripción :

BBVA COMPASS BANK

cAsE NO.2014-Cl-03773

AU¡ÉC}ñIZãO A! rcqizÀDÂ

n'50?l?5?5q'F r:OÊ¿OO¡IBËr: ¡5¡ 5&I¡ el'