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.