Excellence 2000, Inc.; Sherwin Allen; and Claudis Allen v. Elbert Moore--Appeal from County Court at Law of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Excellence 2000, Inc.; Sherwin Allen; and Claudis Allen

Appellants

Vs. No. 11-01-00132-CV B Appeal from Dallas County

Elbert Moore

Appellee

The trial court signed the default judgment on September 19, 2000. Appellants timely filed a motion for new trial. On March 21, 2001, appellants filed a notice of restricted appeal. On October 23, 2001, appellants filed a Aregular@ notice of appeal. Appellee has filed in this court a motion to dismiss for want of jurisdiction. The motion is granted, and the appeal is dismissed.

Appellee contends that a restricted appeal is not an available remedy because appellants filed a motion for new trial. Appellants respond that they had no notice of the hearing on their motion for new trial and that, therefore, a restricted appeal is proper. We disagree.

TEX.R.APP.P. 30 provides that a party who did not participate at trial and Awho did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal. . .may file a notice of [restricted] appeal.@ When they filed their motion for new trial, appellants timely filed a postjudgment motion. Pursuant to Rule 30, it is the filing of a postjudgment motion and not notice of a hearing on the motion that precludes the remedy of a restricted appeal. Therefore, a restricted appeal is not an available remedy in this case. See IKB Industries v. Pro-Line Corporation, 938 S.W.2d 440 (Tex.1997).

Appellants= 2001 notice of appeal was filed over a year after the judgment was signed and was not timely. TEX.R.APP.P. 26.1. Appellants have failed to perfect an appeal, restricted or Aregular.@ TEX.R.APP.P. 25.1

The appeal is dismissed for want of jurisdiction.

PER CURIAM

June 13, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.