Motion to Dismiss Denied, Affirmed and Majority and Dissenting Opinions
filed December 19, 2019.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-18-00189-CV

CONSOLIDATED HEALTHCARE SERVICES, LLC D/B/A A1 IMAGING
                  CENTERS, Appellant
                                         v.

             MAINLAND SHOPPING CENTER, LTD., Appellee

                    On Appeal from the 151st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-66745

                            DISSENTING OPINION

      The issue in this appeal is whether a post-judgment motion that does not
specifically request a substantive change in an existing judgment, but instead
requests a written ruling on an evidentiary objection to preserve a complaint for
appellate review, should nonetheless be liberally construed as a Texas Rule of Civil
Procedure 329b(g) motion to modify the judgment. If we were to allow ourselves
the latitude to construe such a motion that does not specifically request a substantive
change to the judgment to be a motion to modify because the trial court might change
its ruling on the evidence and might sua sponte change its judgment, then that post-
judgment filed would establish a 90-day deadline to file a notice of appeal under
Texas Rule of Appellate Procedure 26.1(a)(2).

       In this appeal, Consolidated filed its notice of appeal on March 9, 2018, more
than 30 days after the final summary judgment was signed on November 27, 2017.
See Tex. R. App. P. 26.1. The question of whether Consolidated’s motion for
reconsideration was a motion to modify ultimately establishes whether this court has
jurisdiction over this appeal.1 While I understand why the court would want to reach
the merits rather than dismiss for lack of jurisdiction, determinations of jurisdiction
over appeals should be clear. Thus, today the court effectively establishes that any
post-judgment motion to reconsider an evidentiary ruling which could affect the
judgment and is filed within plenary power is a motion to modify the judgment.
Because I do not believe the Texas Supreme Court’s holding in Lane Bank
Equipment Co. v. Smith Southern Equipment., Inc. can be extended this far, I
respectfully dissent. 10 S.W.3d 308, 314 (Tex. 2000).

       Consolidated’s motion for reconsideration was filed on December 21, 2017:

       TO THE HONORABLE JUDGE:
             CONSOLIDATED HEALTHCARE: SERVICES, LLC D/ B/A
       A1 IMAGING CENTERS, A DELAWARE LIMITED LIABILITY
       COMPANY, “Defendant,” files its Motion for Reconsideration,
       respectfully showing the Court the following:

       1
         On April 3, 2018, Mainland filed a motion to dismiss the appeal for lack of jurisdiction,
arguing that the December 21, 2017 “Motion for Reconsideration” was not a Texas Rule of Civil
Procedure 329b(g) motion to modify, correct, or reform the judgment, which would have
established a 90-day deadline to file the motion for appeal under Texas Rule of Appellate
Procedure 26.1(a)(2). This motion was taken with the appeal. See Tex. R. App. P. 42.3(a)
(involuntary dismissal in civil case on party’s motion).

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1.   On October 9, 2017, the Court heard oral arguments on
     Plaintiff’s Motion for Summary Judgment and Defendant’s
     Response to Plaintiff’s Motion for Summary Judgment. Both of
     which are by reference incorporated herein verbatim.
2.   The Court ruled in favor of Plaintiff and signed an interlocutory
     order disposing of Plaintiff’s claims for relief, but did not rule on
     Defendant’s affirmative defenses, because Defendant’s
     affirmative defenses were not raised in Plaintiff’s Motion for
     Summary Judgment. The Court’s interlocutory Final Judgment
     is by reference incorporated herein verbatim.
3.   On November 27, 2017, the Court heard oral arguments on
     Plaintiff’s Motion for Final Summary Judgment and Defendant’s
     Response to Plaintiff’s Motion for Final Summary Judgment.
4.   On November 27, 2017, the Court entered its “Amended Final
     Judgment,” which ruled in favor of Plaintiff on all matters,
     disposing of Plaintiff’s claims and Defendant’s affirmative
     defenses. On that date, the Court’s rulings became final for
     appeal. The Court’s Amended Final Judgment is by reference
     incorporated herein verbatim.
5.   Defendant shows the Court Defendant’s Response to Plaintiffs
     Motion for Summary Judgment included the following
     objection:
           a. “2. Defendant shows the Court the Plaintiff has created
           a fact issue. Dillard’s, Inc. v, Newman, 299 SW3d 144,
           148 (Tex. 1999). Plaintiff has submitting self-serving
           affidavits from interested witnesses as its sole evidence in
           support of its allegations. A fact-finder may believe all,
           some, or none of the assertions contained in Plaintiff’s
           affidavits at trial. Texas Pattern Jury Charge.
           3. Further, Defendant objects to the Plaintiff’s affidavits,
           because they are not easily controverted, and Defendant
           requests a ruling on its objection. Patterson v. Mobiloil
           Fed. Credit Un., 890 SW2d 551, 554 (Tex.App.—
           Beaumont 1994, no writ).”
6.   Defendant made a written request for a ruling on its objection,
     and a ruling is not contained in either of the Judgments entered
     by the Court, nor has there been an express ruling on Defendant’s

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             objection, as required. Wal-Mart Stores v. Reece, 32 S.W.3d 339,
             347–348 (Tex.App.—Waco 2000). Defendant now re-urges its
             objection and requests an oral hearing on this matter.
            WHEREFORE, PREMISES CONSIDERED, Defendant prays
      this matter be set for hearing and for all other relief it may be entitled
      to.

(Emphasis in paragraph 6 added).

      Consolidated specifically requested an oral hearing in the trial court so it could
receive an express ruling on its objection to Mainland’s summary-judgment
evidence. The “Motion for Reconsideration” is not a Rule 329b(g) motion to modify
the final summary judgment. The “Motion for Reconsideration” is instead a request
for a written ruling on Consolidated’s evidentiary objection to preserve presentation
of a complaint for appellate review. See Tex. R. App. 33.1(a); see Seim v. Allstate
Tex. Lloyds, 551 S.W.3d 161, 165–66 (Tex. 2018) (per curiam) (citing Dolcefino v.
Randolph, 19 S.W.3d 906, 927 (Tex. App.—Houston [14th Dist.] 2000, pet. denied),
and quoting this court with approval) (“In any context, however, it is incumbent
upon the party asserting objections to obtain a written ruling at, before, or very near
the time the trial court rules on the motion for summary judgment or risk waiver.”).

      Here, the court cites the Seventh Court’s dismissal order in Torres v.
Chauncey Mansell & Mueller Supply Company, Inc. for the proposition that a
“motion to modify judgment asking trial court to rule on objections to summary
judgment evidence extended appellate deadlines.” See No. 07-16-00016-CV, 2016
WL 944140 (Tex. App.—Amarillo Mar. 11, 2016, order) (per curiam), disp. on
merits, 518 S.W.3d 481 (Tex. App.—Amarillo 2017, pet. denied). The interlocutory
order in Torres cites this court’s opinion in Mann v. Kendall Home Builders
Construction Partners I, LTD, 464 S.W.3d 84, 90 (Tex. App.—Houston [14th Dist.]
2015, no pet.):


                                           4
       Nevertheless, the court in Mann acknowledged that the motion
       indicated “more than an inference that the movant wanted the sanctions
       incorporated in the judgment.” Id. at 90. Furthermore, the proposed
       order contained verbiage asking that the movant “‘have and recover
       judgment jointly and severally’” against Mann. Id. (emphasis in
       original). These circumstances led the court to hold the motion for
       sanctions as one to modify the judgment for purposes of extending
       appellate deadlines. Id.
       We read Mann as focusing on whether the post judgment motion in
       question sought relief unencompassed by but sought to be included in
       the existing “judgment.” Because the sanctions motion did just that, it
       was a motion to modify within the scope of Rule 26.1(a)(2).
Torres, 2016 WL 944140, at *2.

       In the current case, the court summarizes Torres in the following
parenthetical: “(concluding motion to modify judgment asking trial court to rule on
objections to summary judgment evidence extended appellate deadlines).” What
Torres actually held was more modest. In Torres, “[w]ritten into the Motion to
Modify Judgment was a request for the trial court to ‘modify its final judgment in
this cause to include a written ruling on their objections to Plaintiff's summary
judgment . . .’ (Emphasis added).” Id.

       It is not clear whether the Seventh Court’s Torres decision meets the supreme
court’s test that a timely motion to modify qualifies to extend appellate deadlines
when it seeks a “substantive change in an existing judgment.” Lane Bank Equip. Co.,
10 S.W.3d at 314. What is clear is the court in this case is expanding the holding of
Torres and our court’s holding in Mann. Consolidated has not sought any change in
the judgment.2 What Consolidated sought was to preserve its complaint for appeal,


       2
         The majority opinion states, “At a minimum, the motion can be construed as a request for
inclusion of the evidentiary rulings in the judgment.” While that may be true, Consolidated asked
for a hearing, and had it received that hearing, it may have merely requested a written order on its
evidentiary objection. Speculation on Consolidated’s trial strategy should not be a basis for
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which does not of necessity require a modification of the judgment.

       If the court wishes to liberalize the rules regarding appellate jurisdiction to
include any post-judgment request for a Texas Rule of Appellate Procedure
33.1(a)(2) evidentiary ruling as inherently being a motion to modify that seeks a
“substantive change in an existing judgment,” then the court should make that
explicit holding. The cases the court cites do not support such a broad holding, so
careful and experienced practitioners should proceed with caution.

       Consolidated’s “Motion for Reconsideration” neither explicitly requests a
modification of the trial court’s final summary judgment, not does it need to be
construed to do so in order for Consolidated to receive the relief it requested: an oral
hearing in the trial court resulting in an express ruling on its objection to Mainland’s
summary-judgment evidence for purposes of error preservation. The “Motion for
Reconsideration” is not a Rule 329b(g) motion to modify the final summary
judgment that establishes a 90-day deadline to file Consolidated’s notice of appeal.
The notice of appeal was filed on March 9, 2018, well after the 30-day deadline of
December 27, 2017.

       Concluding that we have no discretion to do anything other than grant
Mainland’s motion to dismiss the appeal for lack of jurisdiction, I respectfully
dissent.




                                        /s/       Charles A. Spain
                                                  Justice

Panel consists of Justices Wise, Zimmerer, and Spain. (Spain, J., dissenting).


determining appellate jurisdiction.

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