Jeffery Alexander v. University Health System, et al.--Appeal from 37th Judicial District Court of Bexar County

No. 04-04-00499-CV

Jeffrey ALEXANDER,

Appellant

v.

UNIVERSITY HEALTH SYSTEM and Dr. Randy Otto, M.D.,

Appellees

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-14976

Honorable David A. Berchelmann, Jr., Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 22, 2004

DISMISSED FOR LACK OF JURISDICTION

The trial court rendered summary judgment on December 8, 2003 in favor of one of the defendants below, Bexar County Hospital District d/b/a University Health System ("UHS"), in trial cause number 2002-CI-14976. Also on December 8, 2003, the trial court rendered summary judgment in favor of another defendant below, Dr. Randy Otto. In its December 8th order in favor of Dr. Otto, the trial court severed appellant's claims against Dr. Otto into a separate cause number (2003-CI-19014). On December 22, 2003, the trial court signed a second order granting Dr. Otto's motion for summary judgment, which appears identical to its December 8th order except this order does not indicate the severed cause number. Appellant filed a notice of appeal on July 9, 2004. Because it appeared that appellant's notice of appeal was not timely filed, this court ordered appellant to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. Both appellant and UHS responded. UHS also moved to dismiss this appeal for lack of jurisdiction.

It appears that appellant did not receive notice of the trial court's summary judgments until on or about February 20, 2004. (1) On March 12, 2004, appellant filed a Motion to Reopen Case With Sanction and Grievance, which we will construe as a motion for new trial. The Texas Rules of Civil Procedure provide the periods from which certain deadlines run. See Tex. R. Civ. P. 306a. Assuming appellant received actual notice on February 20, 2004, his motion for new trial was due thirty days later, on March 22, 2004. See Tex. R. Civ. P. 306a(4) (periods begin on date actual knowledge acquired); Tex. R. Civ. P. 329b(a) (time for filing motion for new trial). Therefore, appellant's March 12th Motion to Reopen Case was timely filed, and his notice of appeal was due on May 20, 2004. Tex. R. App P. 26.1(a). However, there is no indication of the date on which authorities at the Estelle Unit actually provided appellant with his mail and we note that the documents attached to Ms. Liddell's affidavit also bear a date-stamp of August 5, 2004 (for which no explanation is provided). Accordingly, we will view the dates in this case in the most favorable light to appellant. Rule 306a provides that "in no event shall periods begin more than ninety days after the judgment or other appealable order was signed." Tex. R. Civ. P. 306a(4). Therefore, the time period from which appellant was required to file his notice of appeal began to run on March 7, 2004, which is ninety days from the date the summary judgments were signed on December 8, 2003. Id. Because appellant timely filed his Motion to Reopen Case, his notice of appeal was due on June 7, 2004, which is ninety days from March 7th. See Tex. R. App. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on June 22, 2004. See Tex. R. App. P. 26.3. Appellant did not file a motion for extension of time and his July 9, 2004 notice of appeal was not timely filed.

Even assuming the trial court's December 22, 2003 summary judgment in favor of Dr. Otto was the final judgment, appellant's notice of appeal was still not timely filed. Ninety days from December 22nd was March 22, 2004. Because appellant timely filed his Motion to Reopen Case, his notice of appeal was due on June 21, 2004, which is ninety days from March 22nd. See Tex. R. App. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on July 6, 2004. See Tex. R. App. P. 26.3. Appellant did not file a motion for extension of time and his July 9, 2004 notice of appeal was not timely filed.

"[O]nce the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction." See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Therefore, UHS's motion to dismiss is granted and this appeal is dismissed for lack of jurisdiction. See Tex. R. App. P. 42.3(a).

PER CURIAM

1. Attached to UHS's show cause response is the affidavit of Ms. Amber Liddell, who is the staff attorney for the Bexar County Civil District Courts. Ms. Liddell states she sent a letter to appellant on February 9, 2004, notifying him that "the Motion for Summary Judgment was granted in favor of the Defendant." However, the letter fails to inform the appellant of the date on which the summary judgments were signed. Documents attached to Ms. Liddell's affidavit appear to indicate her letter to appellant was received at the Estelle Unit on February 20, 2004. Appellant does not admit to receiving Ms. Liddell's letter. He states he filed his Motion to Reopen Case because he was "guessing" that the motions for summary judgments might have been granted.