Alejandro Santos and Martha Monica Santos v. Madelyn Holzman, M. D., Individually and D/B/A Urologic Specialists Associates, P. A. ( 2011 )

NUMBER 13-10-00671-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

____________________________________________________________

ALEJANDRO SANTOS AND

MARTHA MONICA SANTOS, APPELLANTS,

                                                             v.

MADELYN HOLZMAN, M. D., INDIVIDUALLY

AND D/B/A UROLOGIC SPECIALISTS

ASSOCIATES, P. A.,                                                                    APPELLEE.

____________________________________________________________

                             On Appeal from the 275th District Court

                                        of Hidalgo County, Texas.

____________________________________________________________

                               MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Rodriguez and Perkes

Memorandum Opinion Per Curiam

Appellants, Alejandro Santos and Martha Monica Santos, attempted to perfect an appeal from a judgment entered by the 275th District Court of Hidalgo County, Texas, in cause number C-2714-99-E.  Judgment in this cause was signed on August 18, 2010. A motion for new trial was filed on December 3, 2010, and notice of appeal was filed on December 6, 2010. 

On December 15, 2010, the Clerk of this Court notified appellant of this defect so that steps could be taken to correct the defect, if it could be done.  Appellant was advised that, if the defect was not corrected within ten days from the date of receipt of this Court’s letter, the appeal would be dismissed.  Appellant has not filed a response to the Court’s notice. 

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when notice of appeal is filed within thirty days after the judgment is signed, unless a motion for new trial is timely filed. Tex. R. App. P. 26.1(a)(1).  Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the judgment is signed.  Tex. R. App. P. 26.1(a).

Appellants’ motion for new trial was due on September 17, 2010.  See Tex. R. Civ. P. 329b(a).  The motion for new trial was untimely because it was filed on December 3, 2010.  Therefore, appellants’ notice of appeal was due to have been filed on or before September 17, 2010.  See Tex. R. App. P. 26.1(a). Appellants did not file their appeal until December 6, 2010.

The Court, having examined and fully considered the documents on file, appellants’ failure to timely perfect their appeal, and appellants’ failure to respond to this Court’s notice, is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR WANT OF JURISDICTION.  See Tex. R. App. P. 42.3(a)(c).              

                                                                                    PER CURIAM

Delivered and filed the

10th day of February, 2011.