Clara Mae Bell, Carolyn Bell Thomas v. Bill Neal

NO. 07-01-0235-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 29, 2001
______________________________
CAROLYN BELL THOMAS, APPELLANT
V.
BILL NEAL, APPELLEE
_________________________________
FROM THE 46TH DISTRICT COURT OF SHERMAN COUNTY;
NO. 9395; HONORABLE LESLIE THOMAS, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellee Bill Neal has filed a motion to dismiss this appeal, asserting we have no
jurisdiction because appellant failed to perfect her appeal within the time prescribed by the
Rules of Appellate Procedure. We grant appellee’s motion and dismiss the appeal.
The judgment at issue was rendered January 4, 2001. Appellant timely filed a
motion to set aside that judgment on January 19, 2001. On May 31, 2001, appellant filed
a notice of appeal designating it a restricted appeal pursuant to appellate Rules 25.1(d)(7)
and 26.1(c). However, by virtue of Rule 30, restricted appeals are only available to
parties who did not participate at trial and did not timely file a post-judgment motion. Here,
appellant’s timely January 19 motion to set aside the judgment precludes her right to a
restricted appeal. Laboratory Corp. v. Mid-Town Surgical Ctr., 16 S.W.3d 527, 528
(Tex.App.–Dallas 2000, no pet. h.). Appellant’s May 31 notice of appeal was also untimely
for perfecting an ordinary appeal because it was filed beyond the 90-day period set by
Rule 26.1(a).
A timely notice of appeal is necessary to invoke this court’s appellate jurisdiction.
Tex. R. App. P. 25.1(b). Because the notice of appeal was not timely filed, we are without
jurisdiction to hear this appeal. Accordingly, we must, and hereby do, dismiss this appeal.
Per Curiam
Do not publish.
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