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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-20-00021-CV

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GERDAU AMERISTEEL CORPORATION AND GERDAU S.A., Appellants

V.

BRUCE BEARD AND SARAH BROCK, Appellees

__________________________________________________________________

On Appeal from the 163rd District Court

Orange County, Texas

Trial Cause No. B160371-C

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MEMORANDUM OPINION

Gerdau Ameristeel Corporation and Gerdau S.A. (collectively “Gerdau”) filed 

a motion for an extension of time to file a notice of appeal from orders denying their 

special appearances.

1 The appellees, Bruce Beard and Sarah Brock, filed a motion 

to dismiss the appeal for lack of jurisdiction. Gerdau filed a response. We conclude 

the notice of appeal and motion for extension were filed outside of the allowable 

1 All of Gerdau’s filings have been subject to the special appearances. 
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time period to perfect an accelerated appeal. Accordingly, we dismiss the appeal for 

lack of jurisdiction.

On September 16, 2019, the trial court signed orders denying Gerdau’sspecial 

appearances. On January 17, 2020, Gerdau filed a motion that requested a hearing 

to determine that Gerdau first received notice or acquired actual knowledge of the 

signing of the orders denying the special appearances on January 17, 2020. See Tex. 

R. Civ. P. 306a. On the same day, Gerdau filed a notice of appeal and a motion for 

extension of time to file the notice of appeal. See Tex. R. App. P. 4.2, 26.3. On 

February 26, 2020, the trial court signed an order ruling on Gerdau’s relevance 

objections to Beard’s and Brock’s exhibits supporting their response to Gerdau’s 

special appearances. In an order signed the following day, the trial court found that 

Gerdau first received notice and first acquired actual knowledge of the orders 

denying the special appearances on January 17, 2020.

Gerdau argues the orders denying the special appearances were not complete 

until the trial court ruled on Gerdau’s evidentiary objections. Section 51.014 

describes which interlocutory orders are appealable. See Tex. Civ. Prac. & Rem. 

Code Ann. § 51.014. It is the order denying a special appearance that is appealable, 

not the order on Gerdau’s objections to Beard’s and Brock’s special appearance 

evidence. See id. § 51.014(a)(7). The trial court denied Gerdau’s special appearances
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on September 16, 2019; therefore, the orders were appealable from that date. Id. The 

accelerated timetable applies. See Tex. R. App. P. 26.1(b). 

Gerdau argues we may treat the trial court’s order of February 26, 2020, which 

ruled on Gerdau’s objections to Beard’s and Brock’s evidence, as a modified special 

appearance order under Texas Rule of Appellate Procedure 27.3. See Tex. R. App. 

P. 27.3. The orders denying the special appearances and the order ruling on 

objections to evidence served different functions and the later order neither vacated 

nor modified the earlier orders denying the special appearances, but Gerdau’s 

argument is unavailing in any case. Rule 27.3 provides a procedure through which 

the appellate court may consider actions occurring after the date of the appealable 

order in resolving the issues in the appeal. See id. Rule 27.3 states that a party may 

appeal a subsequent order or judgment but nothing in Rule 27.3 affects the timetable 

for the original appeal. See id. Here, the subsequent order concerns the special 

appearance but neither grants nor denies a special appearance and it is, therefore, not 

separately appealable. 

In this case, because the twentieth day was a Sunday, the notice of appeal was 

due on or before October 7, 2019. See id.; see also Tex. R. App. P. 4.1(a). An 

extension could be granted to October 22, 2019. See Tex. R. App. P. 26.3. No notice 

of appeal was filed within the time permitted by these rules because, as the trial court 
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found, Gerdau received neither notice nor actual knowledge of the orders during this 

period. Therefore, Gerdau relies upon the procedure to gain additional time governed 

by Texas Rule of Civil Procedure 306a(5). See Tex. R. Civ. P. 306a(5); see also Tex. 

R. App. P. 4.2(b). 

Gerdau argues the notice of appeal was filed within the extension period 

because Gerdau did not receive notice or acquire actual knowledge of the September 

16 orders within ninety days and the notice of appeal and motion for extension of 

time were filed within the extension period if we calculate the appellate timetable 

from the ninetieth day after September 16, 2019. We cannot adopt Gerdau’s 

suggestion, however, because the Supreme Court rejected this argument when it 

construed Rule 306a(4) in a case that Court decided over twenty-five years ago. See

Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993). 

In Levit, the appellant learned of a dismissal for want of prosecution on the 

ninety-first day following dismissal and filed a bill of review. Id. at 469. Reviewing 

the denial of the bill of review, the Supreme Court considered competing 

interpretations of Rule 306a(4) and held that “notice received after the 90th day is 

simply not covered by the Rule.” Id. at 470. Gerdau argues that in an accelerated 

appeal, a fair interpretation of Rule 306a(4) differs from the rationale expressed in 

Levit, where the litigant’s rights were protected by the availability of a bill of review. 
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See id. But Rule 306a(4) applies to both final judgments and appealable interlocutory 

orders without distinguishing between the two. See Tex. R. Civ. P. 306a.

2 The 

limited exception in Rule 306a that provides a procedure for gaining additional time 

to perfect an appeal provides a remedy solely when a party learns of an appealable 

order within ninety days of the date the trial court signs the order. JRJ Invs., Inc. v. 

Artemis Global Bus., Inc., No. 01-19-00004-CV, 2019 WL 6315195 at *2–3 (Tex. 

App.—Houston [1st Dist.] Nov. 26, 2019, no pet.) (mem. op.); Ford Motor Co. v. 

Garza, 579 S.W.3d 709, 712–13 (Tex. App.—El Paso 2019, pet. filed). Gerdau is 

not entirely without a remedy because, as Beard and Brock concede, Gerdau can 

contest the trial court’s personal jurisdiction ruling in an appeal from a final 

judgment. See JRJ Invs., Inc., 2019 WL 6315195 at *4.

2 Rule 306a(4) provides:

If within twenty days after the judgment or other appealable order is 

signed, a party adversely affected by it or his attorney has neither 

received the notice required by paragraph (3) of this rule nor acquired 

actual knowledge of the order, then with respect to that party all the 

periods mentioned in paragraph (1) shall begin on the date that such 

party or his attorney received such notice or acquired actual knowledge 

of the signing, whichever occurred first, but in no event shall such 

periods begin more than ninety days after the original judgment or other 

appealable order was signed.
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We are not at liberty to interpret a rule of civil procedure in a manner 

inconsistent with a previous application of the Supreme Court. See Levit, 850 S.W.2d 

at 470. Accordingly, we dismiss the appeal for lack of jurisdiction.

APPEAL DISMISSED.

PER CURIAM

Submitted on April 1, 2020

Opinion Delivered April 2, 2020

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