 
 




                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                               NO. 09-18-00130-CV
                           ____________________

                      TYLER BENNETT COX, Appellant

                                         V.

     CASEY O'NEIL FOSTER, INDIVIDUALLY AND D/B/A FOSTER
          ENTERPRISE, AND JESSICA FOSTER, Appellees
________________________________________________________________________

                   On Appeal from the 60th District Court
                           Jefferson County, Texas
          Trial Cause No. B-198,020, consolidated with No. E-198,085
________________________________________________________________________

                          MEMORANDUM OPINION

      The trial court signed a summary judgment order on December 18, 2017.

Tyler Bennett Cox filed a notice of appeal on April 4, 2018. We questioned whether

the notice of appeal was timely filed and the parties filed responses. Cox argues the

December 18, 2017 order granting summary judgment was not final because it did

not dispose of his claims against Foster Enterprises. Alternatively, Cox argues the




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time for perfecting an appeal runs from the date on which the trial court signed orders

denying Cox’s motion for reconsideration and motion to sever.

              Casey O’Neil Foster and Jessica Foster filed a motion for summary judgment

on Cox’s claims of negligence and gross negligence. When the trial court granted

the motion for summary judgment, Cox’s live pleading alleged that at the time of

the incident that gave rise to the litigation, Casey Foster operated Foster Enterprises

as a sole proprietorship.1 Cox alleged that Foster Enterprises was vicariously liable

for the acts that occurred in its principal place of business, the Fosters’s residence,

because Casey Foster was acting within the course and scope of his agency

relationship with Foster Enterprises. The order granting the Fosters’s motion for

summary judgment stated, “Plaintiff Tyler Bennett Cox’s claims against Defendants

Casey O’Neil Foster and Jessica Foster are hereby dismissed with prejudice.”

              “A judgment that finally disposes of all remaining parties and claims, based

on the record in the case, is final, regardless of its language.” Lehmann v. Har–Con

Corp., 39 S.W.3d 191, 200 (Tex. 2001). Cox argues that his claim against Foster

Enterprises was not disposed of in the order granting the Fosters’s motion for


                                                            
              1
        Cox initially sued Foster Safety, LLC but amended his pleadings after Foster
Safety, LLC filed a motion for summary judgment on the ground that it was
incorporated in 2015 and did not exist on the date of the incident made the basis of
the lawsuit.
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summary judgment. However, it was undisputed that Casey Foster was doing

business as Foster Enterprises. “[A] sole proprietorship has a legal existence only in

the identity of the sole proprietor.” Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662

S.W.2d 951, 952 (Tex. 1983). By filing a pleading naming as a defendant “Casey

Foster d/b/a Foster Enterprise,” Cox effectively substituted Casey Foster as the true

name of the party. See Tex. R. Civ. P. 28. Because Casey Foster is Foster Enterprises,

the order granting the Fosters’s motion for summary judgment disposed of all of

Cox’s claims against the only defendants before the court. See id. The dismissal was

effective even if it included claims on which the Fosters had not sought summary

judgment. See generally In re Daredia, 317 S.W.3d 247, 249–50 (Tex. 2010);

Lehmann, 39 S.W.3d at 206 (stating that if the trial court’s intent is clear from the

order, then the order is final and appealable, even though the record does not provide

an adequate basis for rendition of judgment).

      Cox contends the time to perfect his appeal commenced on March 14, 2018.

On that date, the trial court signed two orders. One stated:

           On this day came to be heard Plaintiff’s Motion for
      Reconsideration and Motion to Sever. Upon consideration of Plaintiff’s
      Motion, the Court is of the opinion that it should in all things be
      DENIED.

           IT IS THEREFORE ORDERED that Plaintiffs Motion for
      Reconsideration and motion to Sever is in all things DENIED.

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      The other order provided as follows:

            Came on to be heard by the Court, Plaintiff, Tyler Cox’s Motion
      to Sever. After reviewing said Motion, responses filed by the parties,
      and oral arguments, if any, the Court finds that Plaintiff’s Motion to
      Sever should be, and is hereby, DENIED.

             It is therefore ORDERED that the December 18, 2017 Order
      Granting Defendants Casey O’Neil Foster and Jessica Foster’s No-
      Evidence and Traditional Motion for Summary Judgment, dismissing
      Plaintiff’s claims against Casey O’Neil Foster and Jessica Foster with
      prejudice is final and appealable as it dismissed all claims against all
      parties.

      If the trial court signs a new judgment while it retains plenary power over the

case, the time to perfect appeal runs from the date of the second judgment. See Tex.

R. Civ. P. 329b(h). In this case, however, neither order signed on March 14, 2018,

modified, corrected, or reformed the December 18, 2017 judgment in any respect.

See id.

      Neither of the March 14, 2018 orders changed the judgment in any respect. In

one order the trial court denied Cox’s post-judgment motion to sever and explained

that there were no claims to sever because the trial court had already signed a final

judgment. The other order overruled Cox’s motion for reconsideration. A motion for

reconsideration is equivalent to a motion for new trial. Holloway v. Columbine

Homeowner’s Ass’n, No. 2-05-078-CV, 2005 WL 1120019, at *1 (Tex. App.—Fort

Worth May 12, 2005, no pet.) (mem. op.). “The date a trial court overrules a motion

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for new trial does not affect the appellate timetable[.]” Id. The mere filing of such a

motion extends the deadline to perfect an appeal from thirty days to ninety days, but

the date the trial court signs the order is irrelevant. Id.

       The trial court signed the final judgment on December 18, 2017. Cox filed a

motion for reconsideration within thirty days, thereby extending the time to perfect

an appeal from thirty to ninety days. See Tex. R. App. P. 26.1(a). The notice of

appeal was due March 19, 2018. See Tex. R. App. P. 4.1(a). The period of time

within which a request for an extension of time to file a notice of appeal may be

granted expired April 3, 2018. See Tex. R. App. P. 26.3. Cox filed a notice of appeal

on April 4, 2018. We conclude that notice of appeal was filed too late to perfect an

appeal. Accordingly, the appeal is dismissed for lack of jurisdiction. See Tex. R.

App. P. 42.3(a), 43.2(f).

       APPEAL DISMISSED.


                                                 ________________________________
                                                         CHARLES KREGER
                                                               Justice


Submitted on May 16, 2018
Opinion Delivered May 17, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.


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