Summary
rejecting argument that lack of adequate notice of hearing deprives trial court of jurisdiction or results in "void" judgment
Summary of this case from QuickSet Concrete, Inc. v. Roeschco Constr., Inc.Opinion
No. 05-04-01859-CV
Opinion Filed September 1, 2005.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-00895-03.
Dismissed.
Before Chief Justice THOMAS and Justices LANG-MIERS and MAZZANT.
MEMORANDUM OPINION
In this medical malpractice lawsuit, Billy Rollins, Lisa Adams, and Tammy Norris, individually and as representative of the estate of Joy. S. Dickson, appeal the trial court's order dismissing their suit against Dr. John Beaumont. After reviewing the clerk's record and applicable law, we conclude appellants failed to timely perfect their appeal and dismiss the appeal for want of jurisdiction.
Appellants named eight defendants in their original petition. Six of the defendants were either severed from the original cause or dismissed, leaving appellee and one other defendant. On August 23, 2004, the trial court signed an order non-suiting the seventh defendant and granted appellee's motion to dismiss the case for failure to file a sufficient expert report as required by article 4590i, section 13.01(g) and dismissed the case against appellee.
Three days later, appellants filed a motion to reconsider the order dismissing appellee from the suit. Appellants asserted that they did not have sufficient notice of the hearing upon which the order was based. The trial court held a hearing on the motion and denied it on September 28, 2004. Appellants filed their notice of appeal on December 27, 2004.
The Court now has before it appellee's motion to dismiss the appeal for want of jurisdiction in which he argues that appellants failed to timely perfect their appeal from the August 23, 2004 order. In response, appellants argue the September 28, 2004 order is the "final, appealable judgment" because (1) the August order is void and, alternatively, (2) the September order contained a "substantive" change in the judgment that restarted the appellate timetable. We disagree with both arguments and address each in turn.
First, appellants complain the lack of sufficient notice rendered the August 23, 2004 order void, making the September order the "only constitutional order of dismissal." In particular, appellants assert they did not receive the three days' notice of hearing required by Texas Rule of Civil Procedure 21. Consequently, they argue, without any supporting authority, that the trial court was without jurisdiction to enter the August order and that the appellate timetables should run from the September order.
Even if we assumed appellants are correct and the August order is void, a party cannot attack even allegedly void orders in an untimely appeal. See Kenseth v. Dallas County, 126 S.W.3d 584, 596-97 (Tex.App.-Dallas 2004, pet. denied) (rejecting parties' argument that void orders can be attacked at any time, including time that would otherwise be too late under rules of appellate procedure). Moreover, "jurisdiction" refers to a court's authority to adjudicate a case. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). The notice essential to due process is original notice giving jurisdiction, not notice of the time for exercise of jurisdiction already vested. Ex parte Hodge, 611 S.W.2d 468, 469 (Tex.Civ.App.-Dallas 1980, orig. proceeding). In general, as long as the court entering a judgment has jurisdiction of the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void. Reiss, 118 S.W.3d at 443. Errors other than lack of jurisdiction, such as "a court's action contrary to a statute or statutory equivalent," merely render the judgment voidable so that it may be "corrected through the ordinary appellate process or other proper proceedings." Id.
Here, the trial court had jurisdiction over the parties and subject matter as well as jurisdiction to render judgment, and the order is not void. Ex parte Hodge, 611 S.W.2d at 469 (rejecting argument that party's failure to receive adequate notice of hearing deprived trial court of jurisdiction); Buruato v. Mercy Hosp. of Laredo, 2 S.W.3d 385, 387 (Tex.App.-San Antonio 1999, pet. denied) (rejecting argument that order dismissing suit was void because plaintiffs did not receive timely notice of hearing). We reject appellant's first argument.
Next, appellants argue the trial court reformed its "judgment" in September by denying them an extension to file a report that complied with the statute. Again, we disagree. The August order resolved all remaining issues in this case; nothing remained for disposition. In their motion for reconsideration, appellants asked for thirty days to file a new report. While the September order did deny appellants' new request for relief sought by the motion for reconsideration, it did not in any way modify, correct, or reform the August order dismissing the lawsuit against appellee. See Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003) (concluding time for notice of appeal began to run when trial court signed final judgment, not when it later denied motion for new trial and granted for motion for judgment). We reject the second argument.
The final, appealable order in this case was signed on August 23, 2004. Because appellants filed a timely motion for new trial (actually, a motion for reconsideration), their notice of appeal was due no later than ninety days after the August 24, 2004 order, or November 21, 2004. See Tex.R.App.P. 26.1(a). Appellants filed their notice of appeal on December 27, 2004, more than one month late. Because appellants did not timely appeal the dismissal order, we have no jurisdiction over this appeal. See Thompson v. Beyer, 91 S.W.3d 902, 905 (Tex.App.-Dallas 2002, no pet.).
We grant appellee's motion to dismiss the appeal, and we dismiss this appeal for want of jurisdiction.