elena-garza-as-mother-and-next-friend-of-nathali-selena-garcia-v-juan ( 2012 )

Opinion issued December 13, 2012
In The
Court of Appeals
For The
First District of Texas
NO. 01-12-00866-CV
ELENA GARZA, AS MOTHER AND NEXT FRIEND OF NATHALI
SELENA GARCIA, Appellant
V.
JUAN GARCIA, JUANA FUENTES, ALBERTO GARCIA, JOSE
SALVADOR GARCIA, AND HERMALINDA GARCIA, Appellees
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Cause No. 387820
MEMORANDUM OPINION
Appellant, Elena Garza, as mother and next friend of Nathali Selena Garcia,
attempts to appeal from the trial court’s judgment signed May 29, 2012.
Appellees, Juan Garcia, Juana Fuentes, Alberto Garcia, Jose Salvador Garcia, and
Hermalinda Garcia, have filed an “Opposed Motion to Dismiss for Want of
Jurisdiction.” We grant appellees’ motion and dismiss the appeal.
Generally, a notice of appeal is due within thirty days after the judgment is
signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is
extended to 90 days after the date the judgment is signed if any party timely files a
motion for new trial, motion to modify the judgment, motion to reinstate, or, under
certain circumstances, a request for findings of fact and conclusions of law. See
TEX. R. APP. P. 26.1(a). To be considered timely, a motion for new trial must be
filed within 30 days after the judgment is signed. TEX. R. CIV. P. 329b(a).
The record reflects that the trial court signed the final judgment on May 29,
2012. A motion for new trial was due by June 28, 2012. The record shows that
appellant untimely filed a motion for new trial on June 29, 2012.1 See id.
Because her motion for new trial was untimely filed, it did not extend the
deadline for filing the notice of appeal. See TEX. R. APP. P. 26.1(a)(1). Appellant’s
notice of appeal remained due by June 28, 2012. Appellant did not file a notice of
1
Because appellant certified that the motion for new trial was served on opposing counsel
on June 29, 2012 “and the original was immediately filed with the court” and because
appellant stated, in her motion to extend time to file the notice of appeal, that the motion
for new trial was filed on June 29, 2012, the “mailbox rule” is inapplicable to this case.
See TEX. R. APP. P. 9.2(b).
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appeal until August 30, 2012. Appellant’s notice of appeal was untimely filed.
Without a timely filed notice of appeal, this Court lacks jurisdiction over the
appeal. See TEX. R. APP. P. 25.1.
Accordingly, we GRANT appellee’s motion and DISMISS the appeal for
want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any pending motions
as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Brown.
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