
Opinion issued May 3, 2007










In The
Court of Appeals
For The
First District of Texas



NO. 01-05-00423-CV



WILLIAM EARL CUNNINGHAM, Appellant



On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 00CV0156



MEMORANDUM OPINION
	Appellant William Earl Cunningham filed suit against individuals at The
University of Texas Medical Branch at Galveston, alleging that they operated on him
without consent.  Stefan D. Trocme, M.D. answered and filed a motion for summary
judgment and motion for severance.  The trial court rendered a summary judgment
that Cunningham take nothing from Trocme and severed Cunningham's claim against
Trocme.  The clerk's record reflects that service of citation by certified mail on both
Kapoor Shalint, M.D. and James E. Pepperl, M.D. was ineffective.  The trial court
dismissed the case for want of prosecution on January 5, 2005, at which time no
remaining defendant had either been served or answered.
	Cunningham filed a document entitled "Motion for Out of Time Rehearing" on
March 24, 2005 in which he claimed he did not receive notice of the trial court's
judgment of dismissal until March 24, 2005.  This Court construed that document as
a motion for new trial that requested relief pursuant to Texas Rule of Civil Procedure
306a(4), (5).  We abated the appeal and remanded the case to the trial court to hold
a hearing, make findings of fact regarding when Cunningham received notice, and to
rule on the "Motion for Out of Time Rehearing."  The trial court found that
Cunningham first received notice of the judgment of dismissal March 21, 2005,
granted Cunningham's motion for new trial, and reinstated the case on the trial
court's docket.
	Pursuant to this Court's order, the trial court has granted a new trial, therefore
vacating the judgment of which appellant complains.  Accordingly, we lift the
abatement and dismiss the appeal for want of jurisdiction.  The Clerk of this Court is
directed to issue the mandate immediately.  See Tex. R. App. P. 18.6.


						Sam Nuchia
						Justice

Panel consists of Justices Nuchia, Keyes, and Higley.
