John Green v. Memorial Park Medical Center, Inc.
03-15-00141-CV
| Tex. App. | Mar 24, 2015Background
- Final judgment entered March 13, 2014 in favor of Appellee against Green.
- Temporary injunction extended by court order on February 18–7, 2014 proceedings.
- Appellant's notice of appeal due April 14, 2014; no timely motion for new trial filed.
- Appellant did not seek extension under Rule 26.3, and plenary power expired May 27, 2014.
- Appellant filed a late motion and pleadings in 2014–2015; the trial court dismissed or declined to extend jurisdiction; finality of judgment appealed remains.
- Appellant Green filed a March 3, 2015 notice of appeal, nearly a year after deadline; appellee moves to dismiss for lack of jurisdiction.
- Texas Rule 306a(4) and Rule 42.3(a) are cited to support dismissal for untimeliness and lack of appellate jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of notice of appeal | Green argues jurisdiction over appeal. | Appellee contends untimely appeal. | Untimely; dismissed for lack of jurisdiction. |
| Appellate jurisdiction under Rule 42.3(a) | Rule 42.3(a) authorizes dismissal for lack of jurisdiction when untimely. | Court has authority to dismiss for lack of jurisdiction. | Supports dismissal for lack of jurisdiction. |
| Effect of final judgment and plenary power | Final judgment not subject to timely challenge. | Court lost plenary power | Final judgment final; plenary power expired; no extension permitted. |
| Entitlement to damages for frivolous appeal | N/A | Frivolous appeal damages appropriate under Rule 45. | Appellee entitled to damages for frivolous appeal. |
Key Cases Cited
- In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (appellate court lacks jurisdiction over untimely appeal; dismissal proper)
- Wilkins v. Methodist Health Care System, 160 S.W.3d 559 (Tex. 2005) (accord; untimely appeal dismissal)
- In re Estate of Padilla, 103 S.W.3d 563 (Tex. App.-San Antonio 2003, no pet.) (untimely appeal dismissal despite late notice of final judgment)
- Eddins v. Borders, 71 S.W.3d 368 (Tex. App.-Tyler 2001) (extension not available when untimely appeal)
- Verburg v. Dorner, 959 S.W.2d 615 (Tex. 1997) (extension not available; untimely appeal)
- Citizens State Bank v. Caney Investments, 746 S.W.2d 477 (Tex. 1988) (final judgment and appeals timing)