Jan Cooper and Sam Ortega v. Fiesta Industries of El Paso, Inc. D/B/A Prince MacHiavelli and James A. Hernandez ( 2006 )

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JAN COOPER AND SAM ORTEGA,                             Appellants, v. FIESTA INDUSTRIES OF EL PASO, INC., D/B/A PRINCE MACHIAVELLI, AND JAMES A. HERNANDEZ,                             Appellees.

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No. 08-05-00389-CV Appeal from the 120th District Court of El Paso County, Texas (TC# 2003-5560)

MEMORANDUM OPINION

           This is an attempted appeal from a summary judgment granted in favor of Appellees, Fiesta Industries of El Paso, Inc., d/b/a Prince Machiavelli, and James A. Hernandez. The issue before this Court is whether Appellants, Jan Cooper and Sam Ortega timely filed their notice of appeal. We conclude that they did not and dismiss the attempted appeal for want of jurisdiction.

           The record reflects that the trial court entered its judgment on September 2, 2005. A motion for new trial was not filed in this case. Appellants filed their notice of appeal on November 23, 2005.

           A civil appeal is perfected when the notice of appeal is filed. Tex. R. App. P. 26.1; see Restrepo v. First Nat’l Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238 (Tex. App.--El Paso 1995, no writ) (applying former Tex. R. App. P. 40(a)(1)). If the appellant does not file a motion for new trial, a motion to modify, a motion to reinstate under Rule 165a, or a request for findings of fact or conclusions of law, the notice of appeal must be filed within thirty days after the judgment or other appealable order is signed. Tex. R. App. P. 26.1; Restrepo, 892 S.W.2d at 238. The time for filing a notice of appeal is extended if the appellant files both a notice of appeal and a motion for extension of time within fifteen days after the deadline for filing the notice of appeal. Tex. R. App. P. 26.3.

           The last date allowed for timely filing the notice of appeal was October 2, 2005, thirty days after the day the trial court entered its judgment. See Tex. R. App. P. 26.1. Appellants did not file their notice of appeal until November 23, 2005 and did not timely file a motion for extension of time. Therefore, Appellants failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

                                                                  RICHARD BARAJAS, Chief Justice

January 12, 2006

Before Barajas, C.J., McClure, and Chew, JJ.