Linda Durrett v. Robert P. Roye, M.D. and Regional Orthopaedic and Sports Medicine Center, P.A.--Appeal from 40th District Court of Ellis County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-03-00065-CV

Case Date: 04/09/2003

Plaintiff: Linda Durrett

Defendant: Robert P. Roye, M.D. and Regional Orthopaedic and Sports Medicine Center, P.A.--Appeal from 40th Di

Preview:Linda Durrett v. Robert P. Roye, M.D. and Regional
Orthopaedic and Sports Medicine Center, P.A.--Appeal
from 40th District Court of Ellis County
Linda Durrett v. Robert P. Roye, et al. /**/
IN THE
TENTH COURT OF APPEALS
No. 10-03-065-CV
LINDA DURRETT,
Appellant
v.
ROBERT P. ROYE, M.D.,
AND REGIONAL ORTHOPAEDIC
AND SPORTS MEDICINE CENTER, P.A.,
Appellees
From the 40th District Court
Ellis County, Texas
Trial Court # 61603
MEMORANDUM OPINION
Linda Durrett filed a medical malpractice suit against Robert P. Roye and Regional Orthopaedic and Sports Medicine
Center. The defendants moved for summary judgment on the grounds that Durrett is judicially estopped from asserting
her malpractice claim because she did not list it as a claim in a bankruptcy proceeding instituted after the claim arose.
See Nat l Loan Investors, L.P. v. Taylor, 79 S.W.3d 633, 637 (Tex. App. Waco 2002, pet. denied). The court granted
the defendants summary judgment motion and rendered a take-nothing judgment against Durrett on October 23, 2002.
Durrett timely filed a motion for new trial. Thus, her notice of appeal was due on January 21, 2003. See Tex. R. App.
P. 26.1(a)(1). She did not file her notice of appeal until February 12, 2003.
We notified the parties by letter dated March 13, 2003 that this appeal may be dismissed for want of jurisdiction
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because of the untimely notice of appeal. Id. 42.3(a). In response, Durrett contends that the notice of appeal is timely
because it was filed within thirty days after the trial court s plenary power expired. E.g., Philbrook v. Berry, 683
S.W.2d 378, 379 (Tex. 1985) (trial court s plenary power can extend as much as 105 days after judgment) (citing Tex.
R. Civ. P. 329b). However, the continuation of the trial court s plenary power because of a post-judgment pleading has
no effect on the deadline for perfecting an appeal.
Rather, Rule of Appellate Procedure 26.1(a) provides that the notice of appeal must be filed within 90 days after the
judgment is signed if certain post-judgment pleadings are timely filed. Tex. R. App. P. 26.1(a).
Because Durrett s notice of appeal is untimely, we lack jurisdiction over this appeal. Raley v. Lile, 861 S.W.2d 102,
105-06 (Tex. App. Waco 1993, writ denied) (untimely appeal bond). Accordingly, we dismiss the appeal for want of
jurisdiction.
PER CURIAM
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Dismissed for want of jurisdiction
Opinion delivered and filed April 9, 2003
[CV06]
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