San Angelo Community Medical Center v. Kelly Nelson

• Court: Court of Appeals of Texas
• Decided: April 8, 2016
• Docket: 03-16-00146-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-16-00146-CV

San Angelo Community Medical Center, Appellant

v.

Kelly Nelson, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. A150086C, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM

On March 3, 2016, San Angelo Community Medical Center (SACMC) filed a notice

of appeal from the district court’s order denying its motion to dismiss Kelly Nelson’s health-care

liability claim.1 See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9), 74.351(b). The district court’s

order from which SACMC appeals was dated January 15, 2016, but not marked as filed until

February 12, 2016.

Texas Rules of Appellate Procedure provide that a notice of appeal is due twenty days

after the court signs the interlocutory order being appealed. See Tex. R. App. P. 26.1(b).2 In

response to our letter questioning jurisdiction over this appeal, SACMC states that its counsel

1 A visiting judge from Brownwood conducted the hearing on the motion to dismiss and after taking the matter under advisement, later signed the order. 2 An extension of time was available, but not sought, within fifteen days of that deadline. See Tex. R. App. P. 26.3. checked the district court’s website (on an unspecified date) and noticed that the docket sheet

reflected entry of the January 15 order. However, counsel for SACMC states that the order was

not filed until February 12, 2016, and that the clerk did not e-mail the order to SACMC until

February 19, 2016. Based on these representations of delayed filing of the signed order, SACMC’s

counsel requests a twenty-day extension of time running from February 12, 2016, the date that

the district court’s order was filed. Because the rules of appellate procedure do not allow us to alter

the time for perfecting an appeal in a civil case, we must deny that motion. See Tex. R. App. P. 2.

However, the rules allow a party alleging late notice of an appealable order to have

the trial court establish the date when the party or the party’s attorney first received notice or

acquired actual knowledge that the order was signed. See Tex. R. App. P. 4.2; Tex. R. Civ. P. 306a.

If the party complies with the requirements of Texas Rule of Civil Procedure 306a(5) and proves

that it received notice of the appealable order more than twenty days—but less than ninety-one

days—after it was signed, then post-judgment procedural timetables run from the date that the

party or the party’s attorney received notice of the order. See In re Lynd Co., 195 S.W.3d 682, 685

(Tex. 2006) (orig. proceeding); see Tex. R. App. P. 4.2(b) (providing that procedure to gain

additional time is governed by Rule 306a(5)); Tex. R. Civ. P. 306a(5).

Accordingly, we abate this appeal and remand this cause to the district court so that

SACMC may seek the necessary findings as to the date that SACMC or its counsel first received

notice or acquired actual knowledge that the order denying its motion to dismiss was signed. See

Tex. R. App. P. 4.2(b); Tex. R. Civ. P. 306a(5).

2 It is ordered on April 8, 2016.

Before Chief Justice Rose, Justices Pemberton and Bourland

Abated and Remanded

Filed: April 8, 2016