Clarence Hawkins v. Donald Freeman, MD, Frank Peretti, MD and Lubbock Department of Family and Protective Services ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00167-CV
CLARENCE HAWKINS, APPELLANT
V.
DONALD FREEMAN, MD, FRANK PERETTI, MD
AND LUBBOCK DEPARTMENT OF FAMILY
AND PROTECTIVE SERVICES, APPELLEES
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2013-506,653; Honorable William C. Sowder, Presiding
June 2, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Clarence Hawkins, appearing pro se, filed a notice of appeal on April
13, 2015. Appellees are Donald Freeman,1 Frank Peretti, and the Texas Department of
Family and Protective Services.
1
The district clerk’s certificate that accompanied Hawkins’ notice of appeal
names Donald Freeman, MD among the defendants; some of the documents provided
us spell his last name “Freedman.”
Hawkins filed suit against appellees. According to copies of orders provided by
the district clerk, on August 16, 2013, the trial court signed a take-nothing judgment in
favor of the Department and severed Hawkins’ case against it from the remaining
parties and issues. On February 21, 2014, the court signed an order dismissing with
prejudice all Hawkins’ claims against Freeman. The order concludes with the
statement, “This is a final judgment disposing of all issues and parties.” The court then
signed an order on June 17, 2014, granting Peretti’s “motion to dismiss” without
prejudice.
A timely-filed notice of appeal invokes the appellate jurisdiction of a court of
appeals. James v. Houston Hous. Auth., No. 14-14-00673-CV, 2014 Tex. App. LEXIS
10989, at *3 (Tex. App.—Houston [14th Dist.] Oct. 2, 2014, no pet) (per curiam) (mem.
op.) (citing TEX. R. APP. P. 25.1(b)). Generally, a notice of appeal must be filed within
30 days after the judgment is signed. TEX. R. APP. P. 26.1. A notice of appeal may be
filed within ninety days after the judgment is signed if a party timely files a motion for
new trial or another specified motion or request. TEX. R. APP. P. 26.1(a).2 If the notice
of appeal is untimely, the court of appeals lacks jurisdiction and must dismiss the
appeal. Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto and Friend, LLP, 404
S.W.3d 75, 80 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
In a letter of May 1, 2015, we notified Hawkins and counsel for the appellees it
appeared that the notice of appeal was untimely and that we lacked jurisdiction over the
appeal. We directed Hawkins to file an affidavit or letter brief providing any information
2
Even in a restricted appeal under appellate rule 30, the notice of appeal must
be filed within six months after the judgment is signed. TEX. R. APP. P. 26.1(c); 30.
2
he considered necessary for us to determine our jurisdiction. Hawkins responded by
filing copies of several documents. Nothing he supplied showed his notice of appeal
was timely, or provided any other factual and legal support for our jurisdiction over his
appeal. None of the appellees filed a response, although our letter offered them the
opportunity.
Whether we measure the appellate timetable from the trial court’s February 21,
2014 order3 or its June 17, 2014 order, the notice of appeal filed in April 2015 was
untimely. We have no jurisdiction over the attempted appeal. It is therefore dismissed
for want of jurisdiction. Haase, 404 S.W.3d at 80; see Tex. R. App. P. 42.3(a); 43.2(f).
James T. Campbell
Justice
3
Because of its statement of finality, the February 21, 2014 order appears to be
the final judgment in the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.
2001) (“the language of an order or judgment can make it final, even though it should
have been interlocutory, if that language expressly disposes of all claims and all parties”
(emphasis in original)). But, as noted, for purposes of determining our jurisdiction
based on a timely-filed notice of appeals, it matters not whether the appellate timetable
began on February 21 or on June 17, 2014.
3