Melissa Gail Camp, et al. v. Baylor Medical Center at Waxahachie--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-95-209-CV

MELISSA GAIL CAMP, ET AL.,

Appellants

v.

BAYLOR MEDICAL CENTER AT WAXAHACHIE,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 52914

MEMORANDUM OPINION

Melissa Gail Camp, et al. filed a motion for extension of time to file a cost bond on June 26, 1995. Because the motion is untimely, we do not have the authority to grant the requested extension. Thus, we must dismiss this cause for want of jurisdiction.

In the motion, Camp alleges: //

I.

This appeal arises out of a proceeding in the 40th Judicial District in Ellis County, entitled MELISSA GAIL CAMP, JEFF MOFFITT, DUSTY HAWKINS, and AMBER CAMP, vs. ELLIS COUNTY, TEXAS, and BAYLOR MEDICAL CENTER at WAXAHACHIE, in Cause No. 52914.

II.

Summary Judgment was signed in this matter on March 13, 1995, as to BAYLOR. An order severing BAYLOR from the other defendant was signed on April 6, 1995. The severed case was assigned a new cause number but has not yet been filed and therefore there is not yet a final judgment in this matter. However, the Appeal Bond is filed this day along with this Motion For Extension Of Time To File Appellants' Bond to file same since the case has been severed on April 6th, although it is not yet a final order.

"When a severance order takes effect, the appellate timetable runs from the signing date of the order that made the judgment severed final' and appealable. Depending on the sequence in which the judge signs the documents, the relevant signing date and order may be either the judgment or severance order." Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994). Thus, accepting Camp's recitation of the procedural history as true, her cost bond was due thirty days after the severance order was signed, i.e., by May 8. // See Tex. R. App. P. 5(a), 41(a)(1). She had an additional fifteen days to file a motion for an extension of time to file a cost bond. See id. 41(a)(2). To be timely, then, Camp must have filed a cost bond and a motion for an extension of time by May 22 or 23 at the latest. // See id. We do not have the authority to grant an untimely motion for an extension of time to file a cost bond. See id.; Ludwig v. Enserch Corp., 845 S.W.2d 338, 339-40 (Tex. App. Houston [1st Dist.] 1992, no writ); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 4-5 (Tex. App. El Paso 1992, writ denied). Therefore, because the motion for an extension of time was filed over thirty days after it was due, we cannot grant this motion.

Perfecting an appeal is a requirement to invoke our jurisdiction. See Welch v. McDougal, 876 S.W.2d 218, 220-21 (Tex. App. Amarillo 1994, writ denied); El Paso Sharky's, 831 S.W.2d at 5. Absent a timely filed cost bond or substitute, an appeal is not perfected and we do not have jurisdiction to consider it. See id.; Ludwig, 845 S.W.2d at 339-40. Thus, accepting the facts recited in Camp's motion as true, we do not have jurisdiction over this appeal. See id.

The motion for extension of time and this cause are dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed July 19, 1995

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