Angela Collins v. Xytex Corporation ( 2016 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
March 17, 2016
The Court of Appeals hereby passes the following order:
A16A1139. A16A1141. ANGELA COLLINS et al. v. XYTEX CORPORATION
et al.
Plaintiffs Angela Collins and Margaret Elizabeth Hanson filed an action
against defendants Xytex Corporation, Xytex Cryo International, LTD, Mary Hartley,
(collectively referred to as “Xytex”), and James Christian Aggeles (“the donor”),
alleging the defendants withheld pertinent information and misrepresented
information regarding a sperm donor. Xytex filed a motion to dismiss the plaintiffs’
claims. On October 20, 2015, the trial court granted Xytex’s motion to dismiss and
dismissed all the claims as to all the defendants, including the donor. The plaintiffs
filed a notice of appeal on November 24, 2015.1 Xytex also filed a cross-appeal
regarding the trial court’s October 20, 2015 order. We, however, lack jurisdiction.
A notice of appeal must be filed within 30 days after the entry of the trial
court’s order. OCGA § 5-6-38 (a). The proper and timely filing of a notice of appeal
is an absolute requirement to confer jurisdiction upon this Court. See Couch v.
United Paperworkers Intl. Union, 224 Ga. App. 721 (482 SE2d 704) (1997). Here,
the plaintiffs filed their notice of appeal 35 days after the trial court’s order was
entered. Accordingly, the plaintiffs’ appeal in A16A1139 is untimely, and it is hereby
DISMISSED for lack of jurisdiction.
Although under OCGA § 5-6-48 (e), a cross-appeal may survive the dismissal
1
It appears from the record that the plaintiffs attempted to file a timely notice
of appeal that was returned by the Fulton County Superior Court for failing to follow
mandatory e-filing requirements.
of the main appeal, this is true only where the cross-appeal can stand on its own
merit. This Court has no jurisdiction to entertain a cross-appeal which must derive
its life from the main appeal. See State, DOT v. Douglas Asphalt Co., 297 Ga. App.
511, 514 (677 SE2d 728) (2009). As the cross-appeal cannot stand on its own merit,
this Court has no jurisdiction over the appeal. See id. Thus, Xytex’s cross-appeal in
A16A1141 is also hereby DISMISSED.
Court of Appeals of the State of Georgia
03/17/2016
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.