Full Opinion (html_with_citations)

                       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

                                  ----------

                       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