diane-brownlee-and-brandon-brownlee-v-walter-c-brogan-iii-md-w ( 2008 )

NO. 07-08-0034-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 13, 2008

______________________________

DIANE BROWNLEE AND BRANDON BROWNLEE, APPELLANT

V.

WALTER C. BROGAN, III, M.D.; W. CHUCK BROGAN, III, M.D., Ph.D, P.A.

D/B/A BROGAN HEART CENTER; LUBBOCK HEART HOSPITAL, L.P.;

DENISE RODELA, R.N. AND SHANA VINSON, R.N., APPELLEES

_________________________________

FROM THE 99^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2007-539,760; HONORABLE WILLIAM C. SOWDER, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ON MOTION TO DISMISS

          Appellants Diane Brownlee and Brandon Brownlee filed a motion to dismiss their appeal. While their motion contained a certificate of service it did not contain a certificate of conference as required by Rule 10.1. Tex. R. App. P. 10.1(a)(5). We notified appellants and appellees of this fact by letter of January 25, 2008, and therein explained that any appellee wishing to file a response should do so within ten days of the letter. Having held the motion for ten days with no response from an appellee we proceed to the merits of the motion.

          As no decision of the Court has been delivered to date, we grant appellants’ motion to dismiss the appeal. The appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith. See Tex. R. App. P. 42.1(a). The parties have not presented an agreement for taxation of costs. Therefore costs are taxed against appellants. Tex. R. App. P. 42.1(d).

                                                                           James T. Campbell

                                                                                      Justice

A court of appeals may not use Rule 2 to suspend or enlarge appellate limits that regulate the process of moving a case from trial to finality of conviction. Oldham v. State, 977 S.W.2d 354, 359 (Tex.Crim.App. 1998), cert. denied, 525 U.S. 1181, 119 S. Ct. 1121, 143 L. Ed. 2d 116 (1999). Thus, use of the rule should be limited to instances where suspension of a rule will facilitate the process of moving the case through the appellate court. Id.

When the time in which to rule on a motion for new trial has expired and the motion has been overruled by operation of law, the trial court lacks authority to grant a motion for new trial. State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex.Crim.App. 1987). The rule is intended to provide finality of judgments when a motion for new trial is filed. Id. In Cobb, the trial court had failed to sign a written order granting a motion for new trial until after the motion had been overruled by operation of law, even though he had orally granted the motion within the 75-day period. The court refused to suspend Rule of Appellate Procedure 31(e)(3) (now Rule 21.8) because it was sought to remedy the trial court's tardiness, which was not good cause. Id.

Appellant attempts to distinguish the facts in Cobb from those before us because the delay was due to no fault of the trial court. Nevertheless, in State v. Garza, 931 S.W.2d 560, 563 (Tex.Crim.App. 1996), where a fact situation somewhat similar to Cobb arose, the court held that "Rule 2(b) does not authorize the retroactive suspension of rules governing events that have already occurred at the trial level before the record has been conveyed to the appellate court." Id. ⁽²⁾ Thus, what must be shown by good cause is that suspending a rule "will actually facilitate processing the case through the appellate court by 'expediting a decision' or otherwise." Id.

The rules we are asked to suspend allow 75 days in which to rule on a motion for new trial or motion in arrest of judgment. In these circumstances, there might have been some way of expediting the preparation of the transcript in order to have it available to the trial court so it could make a ruling within the prescribed time period. Nevertheless, suspension of the rules in this instance will not expedite the progress of this case through the appellate process. Thus, because appellant's motions were overruled by operation of law at the trial court level before the record was conveyed to this court, we may not invoke Rule 2 to excuse the absence of a timely written order ruling on the motions. See Jauregui Partners, Ltd. v. Grubb & Ellis Commercial Real Estate Services, 960 S.W.2d 334, 337 (Tex.App.--Corpus Christi 1997, pet. denied).

Accordingly, appellant's motion is overruled.

Per Curiam

Publish.

1. Judge Poe actually commenced a hearing on the motions on the last day permitted under the rules, but recessed the hearing to allow himself time to review the trial transcript.

2.

The previous Rule 2(b) is substantially the same as Rule 2.