liberty-insurance-company-v-w-brice-cottongame-as-personal-representative ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00331-CV
LIBERTY INSURANCE COMPANY APPELLANT
V.
W. BRICE COTTONGAME AS APPELLEES
PERSONAL REPRESENTATIVE OF
THE ESTATE OF A.G., AND AS
NEXT FRIEND OF A.G., I.G., A.G.,
I.G., AND J.G., INDIVIDUALLY, F.Z.,
INDIVIDUALLY, M.Z.,
INDIVIDUALLY, AND M.Z. AND F.Z.
AS NEXT FRIENDS, NATURAL
PARENTS AND LEGAL
GUARDIANS OF V.Z., L.Z., AND
H.Z., MINOR CHILDREN
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 067-250897-11
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MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
Appellees have filed motions to dismiss Appellant Liberty Insurance
Company’s appeal for want of jurisdiction. Appellees assert that Liberty’s appeal
is untimely. For the reasons set forth below, we will grant Appellees’ motions
and dismiss this appeal.
Liberty filed a petition in intervention in the underlying lawsuit, asserting
subrogation claims against Appellees concerning the past and future payment of
workers’ compensation benefits. Liberty attempts to appeal two judgments: a
partial summary judgment against Liberty on its claim concerning past workers’
compensation benefits that was signed on December 4, 2012, and was made
final by a severance order signed on January 24, 20142; and a judgment signed
on July 7, 2014, granting summary judgment for Appellees on Liberty’s remaining
claims concerning future workers’ compensation benefits and ordering those
claims dismissed with prejudice.3 Liberty filed a notice of appeal on October 17,
2
We note that some of the appellees obtained an October 10, 2013
severance order of the summary judgment granted for them and against Liberty
on Liberty’s claim concerning past workers’ compensation benefits and some of
the appellees obtained a January 24, 2014 severance order of the summary
judgment granted for them and against Liberty on Liberty’s claim concerning past
workers’ compensation benefits. For ease of reading, we use January 24, 2014
as the date of severance since the summary judgment for all appellees and
against Liberty on Liberty’s claim concerning past workers’ compensation
benefits was final on that date.
3
The relevant portion of the trial court’s judgment provides:
(2) The Court finds that Intervenor Liberty Insurance Company
has expressly waived, in writing, its subrogation rights seeking a
holiday with respect to the payment of future worker[s’]
compensation benefits . . . . [S]ummary judgment is granted . . . as
2
2014. Concurrently with the filing of its notice of appeal, Liberty filed a motion to
extend the time to file its notice of appeal.
Liberty’s motion to extend the time to file its notice of appeal did not
mention the severance order signed by the trial court and asserted that on
August 6, 2014, Liberty had filed a motion for reconsideration that operated to
extend by ninety days the time for Liberty to file its notice of appeal, making the
notice of appeal’s due date October 6, 2014. Based on Liberty’s motion and
because Liberty’s October 17, 2014 notice of appeal was filed within fifteen days
of the due date computed by Liberty, this court ordered Liberty’s notice of appeal
filed. See Tex. R. App. P. 26.3. Appellees then filed a motion for reconsideration
of our order and motions to dismiss Liberty’s appeal for want of jurisdiction.
Concerning Liberty’s attempt to appeal the trial court’s December 4, 2012
partial summary judgment, that judgment became final on January 24, 2014,
when the trial court signed the severance order. See Thompson v. Beyer, 91
S.W.3d 902, 904 (Tex. App.—Dallas 2002, no pet.) (stating general rule that
severance of an interlocutory judgment into a separate action makes it final). By
filing its notice of appeal almost nine months after that judgment became final,
Liberty’s October 17, 2014 notice of appeal is untimely. See Tex. R. App. P.
26.1. Liberty thus failed to timely perfect an appeal from that final judgment.
to all of Intervenor [Liberty’s] remaining subrogation claims arising
from or concerning future worker[s’] compensation benefits.”
3
Concerning Liberty’s attempt to appeal the trial court’s July 7, 2014
judgment, the motion for reconsideration filed by Liberty on August 6, 2014, is
titled “Motion to Reconsider Intervenor Liberty’s Plea to the Jurisdiction and
Motion for Discontinuance of Suit.” It urges the trial court to grant Liberty’s plea
to the jurisdiction and to discontinue Liberty’s claims by dismissing them. The
motion does not challenge the trial court’s July 7, 2014 summary-judgment ruling.
While any postjudgment motion that “assails the judgment” will extend the
appellate timetable to ninety days, the substance of the motion must be seeking
to set aside the judgment and to relitigate the issues. See, e.g., Gomez v. Tex.
Dep’t of Criminal Justice, Institutional Div., 896 S.W.2d 176, 176–77 (Tex. 1995)
(holding that any motion that “assail[s] the trial court’s judgment” extends the
appellate timetable). In determining whether a postjudgment motion assails the
trial court’s judgment, we look to the substance of the relief sought, not the formal
style of the pleading, and we treat minor procedural mishaps with leniency,
preserving a party’s right to appeal. See Ryland Enter., Inc. v. Weatherspoon,
355 S.W.3d 664, 665 (Tex. 2011).
Here, the substance of Liberty’s motion for reconsideration urges the trial
court to grant Liberty’s plea to the jurisdiction and motion for discontinuance of
the suit and to dismiss Liberty’s suit. The incongruity of Liberty’s position—that
this request for reconsideration of its plea to the jurisdiction and motion for
discontinuance of the suit acts to extend the appellate timetable—is highlighted
by the following facts. Liberty filed first-, second-, and third-amended petitions in
4
intervention affirmatively asserting subrogation claims and pleading facts
invoking the trial court’s subject-matter jurisdiction. Liberty did not assert via a
plea to the jurisdiction that the trial court lacked subject-matter jurisdiction over
Liberty’s subrogation claims until after the trial court had granted the December
4, 2012 partial summary judgment against Liberty. Liberty was free to nonsuit its
then-pending claims asserted in its live petition in intervention at any time prior to
the trial court’s July 7, 2014 final judgment and thereby attain the same relief
sought in its plea to the jurisdiction and motion for discontinuance of suit; it did
not do so. We have located no authority for the proposition that a motion for
reconsideration of a trial court’s failure to do what the movant had an absolute
right to do itself without the aid of the trial court but failed to do is the type of
motion that assails a judgment and will operate to extend the appellate timetable.
See Tex. R. App. P. 26.1(a). Because the substance of Liberty’s motion to
reconsider its plea to the jurisdiction and motion for discontinuance of Liberty’s
claims does not challenge the summary judgment granted for Appellees or urge
relitigation of any claims, we hold that Liberty’s motion for reconsideration of its
plea to the jurisdiction and motion for discontinuance of suit did not assail the trial
court’s July 7, 2014 judgment and was not effective to extend the appellate
timetable. Cf. Lewis v. Lewis, No. 14-08-01038-CV, 2011 WL 860402, at *1
(Tex. App.—Houston [14th Dist.] Mar. 8, 2011, no pet.) (mem. op.) (holding that
motion to reconsider arbitration award did not extend appellate timetables for
appeal from trial court’s judgment).
5
Because Liberty’s motion for reconsideration of its plea to the jurisdiction
and motion for discontinuance of suit did not extend the appellate timetable,
Liberty’s October 17, 2014 notice of appeal was untimely filed. Cf. id. (dismissing
appeal because notice of appeal was not timely filed when motion to reconsider
arbitration award did not extend appellate timetables for appeal from trial court’s
judgment). We grant Appellees’ motions seeking dismissal of the appeal, and we
dismiss the appeal.4
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: December 23, 2014
4
This dismissal opinion disposes of both “Z[.] Appellees’ Motion To Dismiss
For Lack Of Subject Matter Jurisdiction” and “G[.] Appellees’ Motion To Dismiss
For Lack Of Jurisdiction.” This dismissal opinion also moots “Z[.] Appellees’
Motion To Reconsider And Response To Opposed Motion To Extend Time To
File Appellant’s Notice Of Appeal,” in which they ask us to reconsider our order
filing Liberty’s October 17, 2014 notice of appeal.
6