Rodolfo C. Cuellar D/B/A Cuellar House Leveling Co. v. Francisco Gomez ( 1999 )

No. 04-99-00454-CV

Rodolfo C. CUELLAR D/B/A Cuellar House Leveling Co., Appellant

v.

Francisco GOMEZ, Appellee

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 99-CI-1232 Honorable Peter Michael Curry, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 18, 1999

DISMISSED FOR LACK OF JURISDICTION

On March 8, 1999, the trial court signed a default judgment against Rodolfo C. Cuellar. Cuellar timely filed a motion for new trial on April 6, 1999, thus extending the time for perfecting an appeal. See Tex. R. Civ. P. 329b(g); Tex. R. App. P. 26.1(a). The notice of appeal was therefore due June 7, 1999, or a motion for extension of time to file the notice of appeal was due fifteen days later on June 22, 1999. See Tex. R. App. P. 26.1, 26.3. Cuellar did not file a timely notice of appeal or a motion for extension of time to file the notice of appeal. However, on June 23, 1999, he filed a notice of appeal and a motion for extension of time. "[O]nce the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction." Verburgt v. Dorner, 959 S.W.2d 615, 615 (1997) (construing the predecessor to Rule 26). On July 14, 1999, we therefore ordered Cuellar to show cause why the appeal should not be dismissed for lack of jurisdiction.

Cuellar responded to our July 14, 1999 order by stating that although the notice of appeal and motion for extension of time were not timely, Cuellar may pursue a restricted appeal pursuant to Rule 30, Tex. R. App. P. Cuellar also filed a motion to amend his notice of appeal and attached an amended notice of appeal which alleged he did not participate in the hearing that resulted in the judgment. However, a restricted appeal may only be pursued by "[a] party ... who did not timely file a postjudgment motion." Id. Because Cuellar filed a timely motion for new trial, a restricted appeal is not available to him. See id.

We therefore dismiss Cuellar's motions to extend time to file notice of appeal and to amend notice of appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH