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Jacobs Field Services North America, Inc. v. Ware

Court of Appeals of Texas, Fourteenth District

November 21, 2017

JACOBS FIELD SERVICES NORTH AMERICA, INC., JACOBS ENGINEERING GROUP, INC., AND JACOBS ENGINEERING, INC., Appellants
v.
MAURICE WARE AND VALIERY JACKSON-WARE, INDIVIDUALLY AND AS NEXT FRIEND OF MAURICE WARE, JR., MINOR, Appellees

         On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2015-27771

          Panel consists of Justices Christopher, Brown, and Wise.

          SUBSTITUTE MEMORANDUM OPINION

          PER CURIAM.

         We withdraw our opinion issued October 10, 2017, vacate our previous judgment, and issue this substitute opinion and judgment.

         Appellants, Jacobs Field Services North America, Inc., Jacobs Engineering Group, Inc., and Jacobs Engineering, Inc. (Jacobs), bring this interlocutory appeal from the trial court's order signed June 30, 2017. Appellees, Maurice Ware and Valiery Jackson-Ware, Individually and as Next Friend Of Maurice Ware, Jr., Minor (Ware), filed a motion to dismiss contending this court lacks jurisdiction as appellants failed to timely perfect an appeal. We grant Ware's motion and dismiss the appeal.

         BACKGROUND

         Ware brought suit against Jacobs[1] alleging claims of negligence, gross-negligence, strict liability, and product-defect. Ware's petition included a certificate of merit by Gregg S. Perkin, P.E. in support of the claims. On January 13, 2016, Jacobs filed a motion to dismiss contending Perkin's certificate of merit did not comply with the requirements of chapter 150.[2] Jacobs specifically complained that Perkin's certificate did not set forth negligence, errors, or omissions for each defendant, or a factual basis for same, but rather included collective assertions of negligence. The trial court signed an order on March 15, 2016 denying Jacobs's motion to dismiss. Jacobs did not appeal that order.

         On May 31, 2017, Jacobs filed an amended motion to dismiss pursuant to chapter 150. In the amended motion, Jacobs contended recent case law from the Texas Supreme Court clarified chapter 150's knowledge requirement. Jacobs argued that Perkin's certificate failed to satisfy the knowledge requirement under chapter 150. Jacobs noted the trial court had not considered whether Perkin's certificate satisfied the knowledge requirement under chapter 150 when it denied Jacobs's first motion to dismiss. In the amended motion, Jacobs again contended Perkin's certificate included collective assertions of negligence as to all defendants and therefore did not satisfy chapter 150's requirements. Ware responded that the court should not reconsider Jacobs's motion challenging the sufficiency of Perkin's certificate under chapter 150. Additionally, Ware argued, among other things, that Jacobs's argument based on the knowledge requirement under chapter 150 was waived as it was not included in the first motion to dismiss.

         The trial court signed an order denying Jacobs's amended motion to dismiss on June 30, 2017. Jacobs filed a notice of appeal on July 13, 2017.

         ANALYSIS

         A. Jacobs's Interlocutory Appeal

         Interlocutory appeal is not permitted unless expressly authorized by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001). Statutes authorizing interlocutory appeal are strictly construed because they are a narrow exception to the general rule that interlocutory orders are not appealable. See Branch Law Firm, L.L.P. v. Osborn, No. 14-14-00892-CV, 2016 WL 444867, at *3 (Tex. App.-Houston [14th Dist.] Feb. 4, 2016, pet. denied). Section 150.002 of the Texas Civil Practice and Remedies Code provides that an order denying a motion to dismiss for a certificate of merit's failure to comply with the requirements of the section is an immediately appealable interlocutory order. See Tex. Civ. Prac. & Rem. Code Ann. § 150.002(e), (f).

         An appeal from an interlocutory order is accelerated. Tex.R.App.P. 28.1(a). In an accelerated appeal, absent a motion to extend time, the deadline for filing a notice of appeal is strictly set at 20 days after the judgment or order is signed. In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005); see also Tex. R. App. P. 26.1(b). A motion for reconsideration will not extend the deadline. See City of Houston v. Estate of Jones, 388 S.W.3d 663, 667 (Tex. 2012). The deadline for filing a notice of appeal is jurisdictional, and absent a timely filed notice of appeal or request for extension of time, we must dismiss the appeal. Garg v. Pham, 485 S.W.3d 91, 99 (Tex. App.- Houston [14th Dist.] 2015, no pet.).

         Ware contends that the amended motion to dismiss was a motion to reconsider the trial court's ruling on March 15, 2016. Further, Ware contends that the amended motion did not extend the deadline to file a notice of appeal from the March 15, 2016 order. Ware argues the notice of appeal filed July 13, 2017 is untimely. Jacobs argues that the amended motion to dismiss is a distinct motion and subject to different appellate deadlines. Specifically, Jacobs argues the amended motion contained new ...


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