Martina Clark v. PCA Health Plans of Texas, Inc. ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-340-CV





MARTINA CLARK,

APPELLANT

vs.





PCA HEALTH PLANS OF TEXAS, INC.,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 92-10829, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

Appellant Martina Clark seeks to appeal from a take-nothing judgment rendered in her suit against appellee PCA Health Plans of Texas, Inc. ("PCA"). PCA has filed a motion to dismiss on the basis that Clark has not timely perfected an appeal. We will overrule the motion to dismiss and will dismiss the appeal on our own motion.

The district court of Travis County rendered judgment against Clark on April 22, 1993. ⁽¹⁾ Clark timely filed a request for findings of fact and conclusions of law on May 3rd. See Tex. R. Civ. P. 296. Clark was, therefore, required to perfect her appeal no later than July 21st. Tex. R. App. P. 41(a)(1). On May 24th, she filed a notice of appeal with the district clerk of Travis County.

Upon receipt of the transcript, the Clerk of this Court notified Clark, by letter, that the transcript did not show that she was a person who may perfect an appeal by filing only a notice of appeal. Tex. R. App. P. 40(a)(1); see, e.g., Tex. Civ. Prac. & Rem. Code Ann. §§ 6.001-.003 (West 1986 & Supp. 1993). We suggested that she seek to amend her notice of appeal or refile a proper perfecting instrument and submit the document to this Court in a supplemental transcript by July 29th. See Tex. R. App. P. 46(f); Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991) (if appellant timely files document in bona fide attempt to perfect appeal, appellate court, on appellant's motion, must allow appellant an opportunity to amend or refile required instrument). But see Hosey v. County of Victoria, 852 S.W.2d 963 (Tex. App.--Corpus Christi 1993, no writ); Wilcox v. Seelbinder, 840 S.W.2d 680, 682-83 (Tex. App.--El Paso 1992, writ denied) (in absence of bona fide dispute as to whether party is exempt from filing bond or making cash deposit, party must file proper perfecting instrument).

In the instant cause, we need not decide whether Clark may have amended her notice of appeal by filing a cost bond or affidavit of inability to pay the costs of appeal or by making a cash deposit. Clark has not tendered a supplemental transcript with any one of the three instruments in this cause. ⁽²⁾ Because she is not a party entitled to perfect an appeal without filing a cost bond or affidavit of inability to pay the costs of appeal or by making a cash deposit and has not done so, we are without jurisdiction over the appeal. University Interscholastic League v. Maroney, 681 S.W.2d 285, 288 (Tex. App.--Austin 1984, writ ref'd); Stevens v. McClure, 732 S.W.2d 115, 117 (Tex. App.--Amarillo 1987, no writ).

The appeal is dismissed for want of jurisdiction.

Before Justices Powers, Jones and Kidd

Appeal Dismissed for Want of Jurisdiction

Filed: September 15, 1993

Do Not Publish

1. ¹  In its motion to dismiss, PCA states that the order from which to calculate the time to perfect appeal is the order granting PCA's motion for summary judgment signed on March 18, 1993. That order, however, was not a final judgment as it did not dispose of PCA's counterclaim against Clark. Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984). The docket sheet included in the transcript shows that PCA filed a motion to nonsuit its counterclaim on March 25th. See Tex. R. Civ. P. 162. That motion, however, is not included in the transcript. On April 22nd, the district court signed an order denying Clark's motion to set aside the order of March 18th, taxing costs against Clark, and denying any relief not expressly granted. But see Teer, 664 S.W.2d at 704. Based on the record before this Court, we determine that the order of April 22nd is the order from which to count appellate deadlines. See Runnymede Corp. v. Metroplex Plaza, Inc., 543 S.W.2d 4, 5 Tex. Civ. App.--Dallas 1976, writ ref'd); Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101, 105 (Tex. App.--Dallas 1992, writ denied). Accordingly, we overrule PCA's motion to dismiss the appeal.

2. ²  PCA has submitted a supplemental transcript that includes its motion to contest affidavit of inability to pay for appeal bond and a timely trial-court order sustaining that contest. See Tex. R. App. P. 40(a)(3).