Sadie C. Powell v. Linh Nutrition Program, Inc., and Linh Nguyen ( 2005 )

Opinion issued February 17, 2005  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-03-00919-CV

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SADIE C. POWELL, Appellant

V.

LINH NUTRITION PROGRAMS, INC.

and LINH NGUYEN, Appellees

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On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 01-CV-120534

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  MEMORANDUM OPINION

          Before we can address the merits of this case, we must first determine whether we have jurisdiction over the appeal. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). We lack jurisdiction to hear this appeal. The trial court granted appellee’s motion for summary judgment and signed a final judgment in this case on April 24, 2003. Sadie C. Powell, appellant, filed a motion for new trial on May 23, 2003. Thus, the deadline for filing a notice of appeal was July 23, 2003, 90 days after the judgment is signed. See Tex. R. App. P. 26.1(a)(1). However, appellant filed her notice of appeal on August 27, 2003. The deadline for filing a motion for extension of time to file notice of appeal was Thursday, August 7, 2003, because that was the fifteenth day after the deadline for filing a notice of appeal. See Tex. R. App. P. 4.1(a), 26.3. No motion for extension of time was filed in this Court by the required deadline.

          Appellant suggests in her notice of appeal that her notice is timely perfected because she is appealing “the judgment entered on July 28, 2003, denying Plaintiff’s Motion [for] New Trial.” However, the deadline for filing her notice of appeal does not run from the date of the denial of her motion for new trial, but rather from the date of the signing of the summary judgment granted for appellees. See Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003) (court dismissed an appeal as untimely because appellant filed notice of appeal based upon date trial court granted motion for judgment, rather than date of judgment itself, which had been entered four weeks earlier).

          This Court has no jurisdiction to consider an appeal when the notice of appeal has not been timely filed. Id.; see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).CONCLUSION

          We, therefore, dismiss the appeal for lack of jurisdiction.   

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.