the Daneshjou Company, Inc. v. W. Lee Brown & Sons, Inc. ( 2006 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-04-00730-CV

NO. 03-04-00734-CV

NO. 03-04-00735-CVNO. 03-04-00737-CV

NO. 03-04-00738-CV

NO. 03-04-00739-CV

NO. 03-04-00740-CV

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The Daneshjou Company, Inc., Appellant

v.

Joe Goergen

&

CNA Construction, Inc.

&

Modern Design and Construction, Inc.

&

Loredo Truss Company, Inc.

&

Loma Excavation, Inc.

&

G. P. Equipment Company

&

W. Lee Brown & Sons, Inc., Appellees

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NOS. GN403647, GN403032, GN402512, GN402481, GN403033, GN402513 & GN402685, HONORABLE PAUL DAVIS, JUDGE PRESIDING

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O R D E R  

Appellee W. Lee Brown & Sons, Inc. filed a motion to dismiss cause 03-04-00740-CV based on a late notice of appeal. (Cause number 03-04-00740-CV was consolidated with the other causes listed in the heading for the purposes of briefing and argument. See The Daneshjou Co., Inc. v. Goergen, No. 03-04-00730-CV (Tex. App.--Austin Mar. 17, 2006) (order)). Brown notes that the final judgment was signed on August 6, 2004. ⁽¹⁾ Assuming this date of judgment, a motion for new trial was due by September 7, 2004, but none was filed until September 16. Without the extended appellate timetable conferred by a motion for new trial, appellant's notice of appeal would have been due September 7, 2004, but was not filed until November 4, 2004, ⁽²⁾ which would have been untimely. See Tex. R. App. P. 26.1(a). However, appellant Daneshjou actually filed an earlier motion for new trial.

On June 10, 2004, the trial court by letter indicated that it would grant a partial summary judgment on all of Daneshjou's claims against W. Lee Brown & Sons except Daneshjou's claim for contribution and noted a fact issue existed concerning Brown's quality of work. On July 15, 2004, the trial court signed an interlocutory order. On July 13, Daneshjou had already filed a motion to clarify and reconsider the "judgment." ⁽³⁾ On July 29, Daneshjou filed a supplemental motion to reconsider. Daneshjou wanted the court to clarify which basis for contribution remained pending as it had claimed three possible grounds for contribution: section 17.555 of the business and commerce code; chapter 33 of the civil practice and remedies code; and chapter 32 of the civil practice and remedies code. ⁽⁴⁾ Daneshjou's motion also asked the court to reconsider its ruling, if it had intended to grant summary judgment against Daneshjou on any of his grounds for contribution. For each ground, Daneshjou argued why the court was incorrect in denying the claim. In its supplemental motion to reconsider, Daneshjou asserted it had express contractual indemnity claims against Brown that should be considered. On August 3, the court overruled Daneshjou's motion. Then, on August 6, 2004, the court dismissed Daneshjou's claims for contribution and severed Brown's cause, creating a final judgment against Daneshjou. Daneshjou asserts that the July motion to reconsider had the effect of a motion for new trial with regard to the August judgment.

A motion for new trial "shall be filed prior to or within thirty days after the judgment or other order complained of is signed." Tex. R. Civ. P. 329b(a). The rules of appellate procedure permit the appellate court to "treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed." Tex. R. App. P. 27.2. Premature filing rules are construed liberally in favor of the right to appeal. South Tex. GMAC Real Estate v. Cohyco, Inc., 124 S.W.3d 321, 325 (Tex. App.--Corpus Christi 2003, no pet.); Miller v. Hernandez, 708 S.W.2d 25, 27 (Tex. App.--Dallas 1986, no writ). For example, a motion for new trial extended the appellate timetable even though directed at an interlocutory judgment that did not became final until the court dismissed the remaining claims five months later. Nuchia v. Woodruff, 956 S.W.2d 612, 614-15 (Tex. App.--Houston [14th Dist.] 1997, pet. denied).

A motion for new trial that complains of error brought forward in a subsequent judgment generally operates to extend the appellate timetable on the judgment it assails. Wilkins v. Methodist Health Care System, 160 S.W.2d 559, 562 (Tex. 2005). A motion for new trial that has been overruled extends the appellate timetable when the complaints raised in the motion have not been cured and remain applicable to a subsequent judgment. See Wilkins, 160 S.W.3d at 562 (citing Harris County Hospital District v. Estrada, 831 S.W.2d 876, 880 (Tex. App.--Houston [1st Dist.] 1992, no writ)). ⁽⁵⁾

Daneshjou's July motion for reconsideration was directed at the trial court's denial of its claims for contribution. The court overruled Daneshjou's motion and dismissed its claims for contribution. Therefore, Daneshjou's motion continued to assail the final judgment by arguing that it was entitled to contribution from Brown, the claim that the trial court denied. Accordingly, the July motion for contribution served as an effective premature motion for new trial. Daneshjou was allowed to use the extended appellate timetable so the November 4 notice of appeal was timely. See Tex. R. App. P. 26.1(a).

Brown also complains that Daneshjou's notice of appeal filed on November 4, 2004, named only LOC Consultants, Inc. as the appellee. The clerk's record in cause 03-740-CV contains a notice of appeal that names LOC Consultants, Inc. as the appellee. However, the rule specifying the contents of the notice of appeal does not call for a list of appellees. See Tex. R. App. P. 25.1(a). Further, the rules call for the appellant to file the notice of appeal in the trial court, with a copy to the appellate court. Id. R. 25.1(e). This court filed a copy of the notice of appeal naming Brown as the appellee. This notice contained a certificate of service showing service on Brown's counsel. Id. A mistake made by the district clerk's office in the compilation of the record when appellee Brown was served with the notice of appeal is not a basis to dismiss the appeal. We overrule Brown's motion to dismiss the appeal.

It is ordered August 24, 2006.

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Pemberton

1. Daneshjou complains that the judgment was initially signed on August 13, 2004, not August 6. The clerk's record shows a judgment that has August 6 crossed out and August 13 written in. A handwritten notation on the judgment in the clerk's record shows "corrected minutes." We need not decide whether we treat August 6 or August 13 as the correct judgment date because we determine that Daneshjou perfected the appeal as to either date.

2. The notice of appeal was received November 8, 2004. Daneshjou provided an affidavit demonstrating that the notice of appeal, which has been filed, was properly mailed November 4, 2004. See Tex. R. App. P. 9.2(b) ("mailbox rule").

3. A motion for reconsideration of an order is the equivalent of a motion for new trial for appeal purposes. See Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (effect of motion depends on nature of instrument; substance, not form, controls).

4. Tex. Bus. & Com. Code Ann. § 17.555 (West 2002); Tex. Civ. Prac. & Rem. Code Ann. §§ 32.001-32.003 (West 1997); Id. §§ 33.001-33.017 (West 1997 & Supp. 2005).

5. The opinion then held that a motion for new trial that had been granted cannot assail a subsequent judgment for purposes of determining the deadline for filing a notice of appeal. Wilkins v. Methodist Health Care System, 160 S.W.3d 559, 564 (Tex. 2005).