Opinion By Justice
Bridges
Healthsouth Medical
Center and Healthsouth Plano Rehabilitation Hospital appeal the trial court's May 9, 2006 order dismissing with prejudice
Healthsouth's claims against Royal & Sun Alliance PLC, March 8, 2006 order
granting PricewaterhouseCoopers' motion for summary judgment, and denial of
Healthsouth's motion for reconsideration of the order granting
PricewaterhouseCoopers' motion for summary judgment. We dismiss for lack of
jurisdiction.
Healthsouth first sued
PricewaterhouseCoopers in 2002, and PricewaterhouseCoopers filed a motion for summary judgment in 2004 on the
grounds that Healthsouth's claims were barred by limitations. On March 8, 2006,
the trial court granted summary judgment in favor of PricewaterhouseCoopers. On
April 7, 2006, Healthsouth filed a “Motion for Reconsideration of Order Granting
Defendant, PricewaterhouseCoopers, L.L.P.'s Motion for Summary Judgment.” The
April 7 motion only addressed the summary judgment granted in favor of
PricewaterhouseCoopers.
In 2005, Healthsouth sued
Royal, and Royal filed a special appearance in October 2005. On May 9, 2006 the trial court granted Royal's special
appearance and dismissed with prejudice Healthsouth's claims against Royal.
Following the May 9 order, the trial court took no further action, and
Healthsouth did not file anything further until it filed its notice of appeal on
August 4, 2006, nearly three months after Healthsouth's claims against Royal
were dismissed. This appeal followed.
Royal filed a motion to
dismiss this appeal on the grounds that Healthsouth's notice of appeal, filed more than thirty days after the trial court
signed the May 9, 2006 order dismissing Healthsouth's claims against Royal, was
too late to confer jurisdiction over this appeal on this Court. Healthsouth
counters that we must consider its April 7, 2006 “Motion for Reconsideration” of
the PricewaterhouseCoopers summary judgment as a prematurely-filed motion to
modify the May 9, 2006 order dismissing Healthsouth's claims against
Royal.
A motion for new trial
“shall be filed prior to or within thirty days after the judgment or other order complained of is signed.” Tex. R.
Civ. P. 329b(a). A motion for new trial filed before judgment “shall be deemed
to have been filed on the date of but subsequent to the time of signing of the
judgment the motion assails . . . .” Tex. R. Civ. P. 306c. An appellate court
may treat actions taken before an appealable order is signed as relating to an
appeal of that order and give them effect as if they had been taken after the
order was signed. Tex. R. App. P. 27.2. Thus, a premature motion for new trial
will extend the appellate timetable. South Tex. GMAC Real Estate v. Cohyco,
Inc., 124 S.W.3d 321, 325 (Tex. App.-Corpus Christi 2003, no pet.). However,
if a trial court modifies a judgment after a motion for new trial has been
filed, a second motion is still needed to extend the deadlines if the first
motion does not “assail” the modified judgment. Id.
Here, on
March 8, 2006, the trial court granted summary judgment in favor of PricewaterhouseCoopers on limitations grounds. On April 7,
2006, Healthsouth filed a “Motion for Reconsideration” of the summary judgment
in favor of PricewaterhouseCoopers, but the motion did not mention Royal or
address Royal's special appearance. In a separate order, the trial court granted
Royal's special appearance on May 9, 2006, and dismissed with prejudice
Healthsouth's claims against Royal. We read Healthsouth's April 7, 2006 motion
for reconsideration as challenging only the trial court's ruling on
PricewaterhouseCoopers' motion for summary judgment, not the order granting
Royal's special appearance and dismissing with prejudice Healthsouth's claims
against Royal. Thus, Healthsouth's April 7, 2006 motion for reconsideration did
not “assail” the May 9, 2006 order granting Royal's special appearance. See
Cohyco, 124 S.W.3d at 325. Accordingly, the motion for reconsideration did
not extend the deadline for filing a notice of appeal from the May 9, 2006
order. See id. Healthsouth's notice of appeal, filed almost three months
after the May 9, 2006 order dismissing Healthsouth's claims against Royal, was
therefore untimely. See Tex. R. App. P. 26.1 (providing that notice of
appeal must be filed within thirty days after judgment is signed, extended to
ninety days if timely motion for new trial is filed). In addition, though the
April 7, 2006 motion for reconsideration would have extended the deadline for
appealing the trial court's March 8, 2006 summary judgment in favor of
PricewaterhouseCoopers, Healthsouth's August 4, 2006, notice of appeal was also
untimely as to the March 8, 2006 summary judgment.
We grant Royal's motion
to dismiss and dismiss this appeal for want of jurisdiction.
DAVID L.
BRIDGES
JUSTICE
061041F.P05
File Date[08/31/2007]
File Name[061041F]
File
Locator[08/31/2007-061041F]