NO. 07-03-0264-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JULY 15, 2003
______________________________
LYDIA GONZALES, individually, as surviving spouse of ISAAC
GONZALES, on behalf of the estate of ISAAC GONZALES, and as
next friend of ANDREW GONZALES, STEVEN GONZALES,
LATICIA GONZALES, and JENNIFER GONZALES,
Appellants
v.
HI-PLAINS HOSPITAL and KITTEN LINTON, M.D.,
Appellees
_________________________________
FROM THE 64th DISTRICT COURT OF HALE COUNTY;
NO. A31394-0102-A; HON. JACK R. MILLER, PRESIDING
_______________________________
Opinion Dismissing Appeals
_______________________________
Before QUINN, REAVIS and CAMPBELL, JJ.
Lydia Gonzales, individually, as surviving spouse of Isaac Gonzales, on behalf of
the estate of Isaac Gonzales, and as next friend of Andrew, Steven, Laticia, and Jennifer
Gonzales (appellants) appealed from an order dismissing their lawsuit against Dr. Kitten
Linton and Hi-Plains Hospital. A cross-appeal was also filed by Linton. We dismiss the
appeals for lack of jurisdiction.
The order of dismissal was signed on January 31, 2003.1 Assuming their motion for
new trial was filed timely, appellants were required to file their notice of appeal within 90
days of January 31, 2003, TEX . R. APP. P. 26.1(a)(1), or by May 1, 2003. It was filed on
May 27, 2003, however. Furthermore, no timely motion to extend the May 1st deadline
preceded the notice. So, by letter dated June 30, 2003, this court requested that
appellants explain why the appeal should not be dismissed for want of jurisdiction.
Appellants responded.
A timely notice of appeal is essential to invoke our appellate jurisdiction. In re
A.L.B., 56 S.W.3d 651, 652 (Tex. App.--Waco 2003, no pet.). If the notice is untimely, then
the court of appeals can take no action other than to dismiss the proceeding. Id. Because
the notice of appeal at bar was filed untimely, we have no choice but to dismiss appellants’
appeal.
As to the notice of appeal of Linton, the notice was filed on June 9, 2003.2 Rule of
procedure dictates that if any party timely files a notice of appeal, any other party may file
a notice of appeal within 14 days after the first notice is filed. TEX . R. APP. P. 26.1(d).
However, when the second notice is filed after the first and the first was filed after the time
to perfect an appeal lapsed, then the timeliness of the second is dependent upon the
timeliness of the first. Bixby v. Bice, 992 S.W.2d 615, 616 (Tex. App.--Waco 1999, no
pet.). Since the first notice at bar was untimely, so too was the second. Consequently, the
court lacks jurisdiction over either appeal.
1
Through the order of dismissal, the trial court severed the claims of the appellants against Linton
and H i-Plains H ospita l into a separate cause and, the reby, rendered the order fina l.
2
In the n otice o f cross-app eal, Linton denied that appellants’ notice was timely.
2
Accordingly, the appeals are dismissed for want of jurisdiction.
Per Curiam
3