Opinion
No. 05-06-00417-CV
Opinion Filed July 9, 2007.
On Appeal from the 116TH Judicial District Court Dallas County, Texas, Trial Court Cause No. 00-8872-F.
Before Justices MORRIS, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
In this medical malpractice case, Tiffany and Anthony Wilson, parents of Josias Wilson, appeal the trial court's summary judgment ordering they take nothing by their lawsuit against Baylor Medical Center at Garland and Baylor Health Care System. Appellees argue the Wilsons failed to timely perfect their appeal and thus this Court is without jurisdiction. After reviewing the record, we agree and dismiss the appeal.
The appellate record shows that the Wilsons originally sued BMC Garland in November 2000 for negligence and amended their petition in December 2003 to add BHCS as a defendant. Later, appellees jointly filed a motion for summary judgment on the issues of duty and standard of care, and the Wilsons responded. The trial court held a hearing on the motion and, on September 30, 2005, signed an order granting appellees' motion for summary judgment and ordered that the Wilsons take nothing by their actions. The order also provided that "[a]ll relief not granted herein is hereby denied." On January 3, 2006, the trial court signed a second order identical to the September 30 order. Our appellate record does not contain any order vacating the first order. The Wilsons filed a notice of appeal from the January 3 order.
In their responsive brief on appeal, appellees assert we do not have jurisdiction because a timely notice of appeal was not filed. In particular, they argue the September 30, 2005 order is the final appealable order in this case, and no notice of appeal was taken from that order. They argue the Wilsons have appealed a void order. The Wilsons did not respond to appellees' jurisdictional argument.
An order which purports to dispose of all issues and all parties is a final appealable order. State ex. rel. Latty v. Owens, 907 S.W.3d 484, 485 (Tex. 1995) (per curiam). The September 30, 2005 order granted appellees' motion for summary judgment and ordered that the Wilsons take nothing by their lawsuit. The grounds raised in the motion for summary judgment went to all claims and parties. Because the order disposed of all issues and all parties, it was a final appealable order. The Wilsons did not appeal this order or challenge it by way of any postjudgment motion.
Months later, on January 3, 2006, the trial court signed a second order that (except for the signing date) was identical to the first. The trial court's plenary power in the case, however, expired thirty days after signing the first order, or October 30, 2005. See Tex. R. Civ. P. 329b(d). Because the trial court did not have plenary power over the case at the time the second order was signed, the second order is void. See Owens, 905 S.W.2d at 486 (judicial action taken after court's jurisdiction over cause has expired is nullity).
The effective order in this case is the September 30, 2005 order. Because the Wilsons failed to perfect a timely appeal from this order, we do not have jurisdiction over this appeal. We dismiss this appeal for want of jurisdiction.