Opinion
No. 02-07-373-CV
Delivered: August 29, 2008.
Appealed from the 342nd District Court of Tarrant County.
PANEL: CAYCE, C.J.; GARDNER and WALKER, JJ.
OPINION
Appellant Tammy Howlett appeals from the trial court's order dismissing her tort claims against Appellee Tarrant County for failure to serve notice of suit on the county judge and district attorney under local government code section 89.0041. TEX. LOC. GOV'T CODE ANN. § 89.0041 (Vernon 2008). We reverse and remand.
Background
Howlett sued the County, alleging that she sustained personal injuries when a vehicle driven by a deputy sheriff collided with the vehicle in which Howlett was a passenger. The County concedes that Howlett served presuit notice on the County within the six-month period prescribed by the Tort Claims Act. See TEX. CIV. Prac. REM. CODE ANN. § 101.101 (Vernon 2005). The County filed an original answer and a motion to dismiss, alleging that Howlett had failed to serve notice of her lawsuit on the county judge and the district attorney under local government code section 89.0041. See TEX. LOC. GOV'T CODE ANN. § 89.0041. After a hearing, the trial court granted the motion to dismiss on August 17, 2007.
Howlett also sued the deputy sheriff. The trial court dismissed her claims against the deputy upon the County's motion under the election of remedies provision of the Tort Claims Act, and Howlett has not appealed that dismissal. See TEX. Civ. PRAC. REM. CODE ANN. § 101.106(e) (Vernon 2005).
On September 6, 2007, Howlett filed a "Motion to Reinstate." The trial court denied the motion on October 5. Howlett filed a notice of appeal on October 31.
Did the motion to reinstate extend the deadline to file a notice of appeal?
In her second issue, Howlett argues that her motion to reinstate was really a misnamed motion for new trial and as such extended the deadline for filing her notice of appeal.
To perfect an appeal, a party must file a written notice of appeal with the trial court within thirty days after the trial court signs the judgment. TEX. R. APP. P. 26.1. But if any party timely files (1) a motion for new trial, (2) a motion to modify the judgment, (3) a motion to reinstate under rule of procedure 165a, or (4) a request for findings of fact and conclusions of law, then the notice of appeal is not due until ninety days after the trial court signs the judgment. TEX. R. APP. P. 26.1(a). A timely-filed notice of appeal confers jurisdiction on this court, and absent a timely filed notice of appeal, we must dismiss the appeal. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
The trial court signed the order dismissing the case on August 17. Howlett filed her notice of appeal October 31, more than thirty days later. Thus, unless Howlett filed a motion to extend the deadline for filing a notice of appeal under rule 26.1(a), her notice is untimely, and we lack jurisdiction over the appeal. See id. On the other hand, if she filed a deadline-extending motion under rule 26.1(a), then her notice of appeal, filed within ninety days of the date the trial court signed the dismissal order, was timely, and we have jurisdiction.
Howlett filed a verified "motion to reinstate" "pursuant to Texas Rules of Civil Procedure, Rule 165a(3)" twenty days after the trial court signed the order dismissing her claims against the County. The motion cited a recent case in which the Dallas court of appeals held that local government code section 89.0041 does not apply to a claim brought under the Tort Claims Act and asked the trial court to (reinstate" Howlett's claim.
Rule 165a concerns dismissal for want of prosecution. TEX. R. CIV. P. 165a. Section 3 of the rule provides that a party may file a verified motion to reinstate a claim dismissed for want of prosecution within thirty days after the trial court signs the order of dismissal. TEX. R. CIV. P. 165a(3).
The trial court did not dismiss Howlett's claim for want of prosecution. Therefore, the reinstatement procedure set forth in rule 165a(3) was inapplicable, and her motion to reinstate under that rule was inapposite. Under the circumstances, a motion for new trial would have been the appropriate instrument to file.
But the provision in rule 26.1(a) that a timely motion to reinstate extends the deadline for filing a notice of appeal is unqualified. That is, rule 26.1(a) does not limit the deadline-extending effect of a timely motion to reinstate only to those circumstances where the motion is meritorious or even appropriate. Thus, under the plain language of the rule, the filing of a motion to reinstate that meets the requirements of rule 165a will extend the deadline to file a notice of appeal, even if the trial court did not dismiss the underlying claim for want of prosecution under rule 165a. See TEX. R. APP. P. 26.1(a).
Under rule 165a, a motion to reinstate must (1) be filed within thirty days of the date the trial court signed the order and (2) be verified. TEX. R. CIV. P. 165a(3). Howlett filed her motion within thirty days of the date the trial court signed the dismissal order, and her counsel verified the motion. Therefore, her motion met the requirements of rule 165a, and while the motion was not the appropriate or best procedure to bring recent case law to the trial court's attention, it was sufficient to extend the deadline to file her notice of appeal under rule 26.1(a). Thus, for purposes of determining whether Howlett timely filed her notice of appeal, we need not decide whether her motion to reinstate was really a misnamed motion for new trial.
The County cites Butts v. Capitol City Nursing Home for the proposition that a motion to reinstate under rule 165a is not a motion for new trial and will not extend the deadline for filing a notice of appeal. See Butts v. Capitol City Nursing Home, Inc., 700 S.W.2d 628 (Tex.App.-Austin 1985), writ ref'd n.r.e., 705 S.W.2d 696 (Tex. 1986). In Butts, the trial court dismissed the plaintiff's claims for want of prosecution. Id. at 629. The plaintiff filed a timely but unverified motion to reinstate and later filed a notice of appeal more than thirty days after the trial court signed the order of dismissal. Id. On appeal, the plaintiff suggested that the court of appeals treat the unverified motion to reinstate as a motion for new trial. Id. at 630. The court of appeals dismissed the appeal for want of jurisdiction, stating, "Without treating every motion to reinstate as a motion for new trial, it is difficult to see how the motion in question could be other than a motion to reinstate." Id. In denying writ, no reversible error, the supreme court noted that if the plaintiff's motion to reinstate had been verified as required by rule 165a, it would have extended the time for perfecting appeal. Butts, 705 S.W.2d at 697.
Butts is distinguishable from this case because Howlett filed a timely, verified motion under rule 165a that extended the time for perfecting appeal under rule 26.1(a). Therefore, unlike the court of appeals in Butts, we need not decide whether Howlett's motion to reinstate should be treated as a motion for new trial. But even if we approach the question from that angle, it is clear that Howlett's motion sought a "substantial change" in the judgment and, as such, it qualified as a motion to modify, correct, or reform the judgment that extended the appellate timetable. See TEX. R. APP. P. 26.1(a)(2); TEX. R. CIV. P. 329b(g); Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 314 (Tex. 2000).
In light of the foregoing discussion, we hold that Howlett's motion to reinstate extended the deadline for filing her notice of appeal, that she timely filed her notice of appeal, and that we have jurisdiction over the appeal. We sustain Howlett's second issue.
Does section 89.0041 apply to claims filed under the Tort Claims Act?
In her first issue, Howlett argues that local government code section 89.0041's postsuit notice requirement does not apply to claims brought under the Tort Claims Act.
Section 89.0041 provides as follows:
(a) A person filing suit against a county or against a county official in the official's capacity as a county official shall deliver written notice to:
(1) the county judge; and
(2) the county or district attorney having jurisdiction to defend the county in a civil suit.
(b) The written notice must be delivered by certified or registered mail by the 30th business day after suit is filed and contain:
(1) the style and cause number of the suit;
(2) the court in which the suit was filed;
(3) the date on which the suit was filed; and
(4) the name of the person filing suit.
(c) If a person does not give notice as required by this section, the court in which the suit is pending shall dismiss the suit on a motion for dismissal made by the county or the county official.
TEX. LOC. GOV'T CODE ANN. § 89.0041.
Howlett concedes that she did not give the notice required by section 89.0041, but she argues that the section does not apply to claims brought under the Tort Claims Act. Howlett relies solely on a case so holding from the Dallas court of appeals, Dallas County v. Coutee, 233 S.W.3d 542 (Tex.App.-Dallas 2007, pet denied). The facts in Coutee are virtually identical to the facts in this case. Coutee sued Dallas County under the Tort Claims Act, alleging that a vehicle driven by a deputy sheriff collided with a vehicle in which Coutee was traveling. Id. at 543. The county did not dispute that Coutee gave presuit notice under the Tort Claims Act, but it moved to dismiss her claims for failing to give postsuit notice under section 89.0041. Id. The trial court denied the motion, and the county appealed. Id.
Howlett misattributes the Coutee opinion to the supreme court.
The Dallas court noted that the Tort Claims Act is a unique statutory scheme that specifically addresses all aspects of tort claims against governmental units, including notice of claims, venue, identification of the governmental unit against which liability is to be established, and service of citation. Id. at 547 (quoting Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). Section 89.0041, on the other hand, generally addresses notices of suits against counties without reference to tort suits. Id.; TEX. LOC. GOV'T ANN. CODE § 89.0041. Applying the rule of construction that specific statutes control over general statutes, the court held that the specific notice provisions of the Tort Claims Act apply to the exclusion of the general notice provisions of section 89.0041. Coutee, 233 S.W.3d at 547. In other words, a claimant pursuing a tort claim against a county must comply with the Tort Claims Act's notice provisions and not those of section 89.0041. See id.
We find our sister court's reasoning persuasive. For the reasons stated by the Dallas court in Coutee, we hold that a claimant pursuing a tort claim against a county must comply with the Tort Claims Act's notice provisions and not those of section 89.0041. Therefore, we hold that the trial court erred by dismissing Howlett's claims for failure to serve postsuit notice under section 89.0041, and we sustain her first issue.
Conclusion
Having sustained both of Howlett's issues, we reverse the trial court's order of dismissal and remand the case for further proceedings.