Opinion
No. 05-05-01632-CV
Opinion Filed April 26, 2006.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. 03-10364-D.
Dismiss.
Before Chief Justice THOMAS and Justices LANG and MAZZANT.
MEMORANDUM OPINION
Patricia M. Mayer appeals the trial court's order granting summary judgment for appellee Pamela Jenkins, M.D. Appellee filed a motion to dismiss asserting this appeal is untimely. Because we agree with appellee, we dismiss this appeal for want of jurisdiction.
The trial court granted appellee's motion for summary judgment. On August 4, 2005, the trial court signed a motion to sever the dismissed causes of action against appellee from the rest of the case, making the summary judgment order final. See Martinez v. Humble Sand Gravel, Inc., 875 S.W.2d 311, 312 (Tex. 1994) (concluding a judgment that disposes of all parties and issues in the severed case is final and appealable on the day the severance order is signed). On September 19, 2005, appellant filed a motion for new trial, and on December 2, 2005, appellant filed her notice of appeal.
The trial court granted appellee's summary judgment and signed a severance order on August 4, 2005. On September 30, 2005, the trial court entered a duplicate order granting appellee's motion for summary judgment. Appellant filed her notice of appeal on December 2, 2005 stating that she is appealing the trial court's order granting appellee's motion for summary judgment of September 30, 2005. However, because the severance order signed on August 4, 2005 was a final order, the trial court no longer had plenary power over the severed action on September 30, 2005. Therefore, appellant cannot appeal the September 30, 2005 order, as it is void. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998).
According to Texas Rule of Appellate Procedure 26.1, a notice of appeal must be filed within thirty days after the final judgment is signed, or within ninety days if a timely motion for new trial is filed. Tex.R.App.P. 26.1. To be timely, a motion for new trial must be filed within thirty days of the final judgment. Tex. R. Civ. P. 329b (a), (b). Here, however, appellant did not file a motion for new trial until September 19, 2005, forty-six days after the final order was signed. Consequently, her motion for new trial was untimely and did not operate to extend the appellate timetable, and therefore, her notice of appeal, filed 120 days after the final order was signed, likewise was untimely. Because appellant did not file a notice of appeal or a motion for new trial within thirty days of the signing of the final order, this Court does not have jurisdiction over this appeal.
In response to appellee's motion to dismiss, appellant asserts that because she received notice of the order of severance more than twenty days after it was signed, the appellate timetable should have began to run on the date she received notice of the signing of the severence order. However, for the appellate deadlines to begin running from the date in which appellant received notice, the trial court would have had to have found that appellant received notice more than twenty days after the final order was signed. See Tex. R. Civ. P. 306a; Texaco, Inc. v. Phan, 137 S.W.3d 763, 767 (Tex.App.-Houston [1st Dist.] 2004, no pet.). After conducting a hearing on appellant's Texas Rule of Civil Procedure 306a motion, the trial court found appellant received actual notice of the final order on August 21, 2005, seventeen days after the order was signed. Because appellant received actual notice of the final order within twenty days of the signing of the order, the appellate timetable began to run on August 4, 2005, the day the order was signed. Because appellant did not timely file a notice of appeal, we do not have jurisdiction to over her appeal.
Accordingly, we dismiss this appeal for want of jurisdiction.