Carol Doe Porter, Hurt Porter, Jr., and Hurt Richard Porter, III v. Walt Disney Company, et al.--Appeal from 11th District Court of Harris County

Opinion issued October 12, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01 05 00131 CV

CAROL DOE PORTER, HURT PORTER JR., AND HURT RICHARD PORTER III, Appellants

V.

ABC, INC., KTRK TELEVISION, INC., WAYNE DOLCEFINO, AND THE WALT DISNEY COMPANY, Appellees

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 0350592

MEMORANDUM OPINIONAppellees, ABC, Inc., KTRK Television, Inc., Wayne Dolcefino, and The Walt Disney Company, have moved for dismissal alleging that appellants, Carol Doe Porter, Hurt Porter Jr., and Hurt Richard Porter III, did not file a timely notice of appeal. A timely filed notice of appeal is jurisdictional. Mortiz v. Preiss, 121 S.W.3d 715, 720 21 (Tex. 2003).

Generally, a notice of appeal must be filed within 30 days after a judgment is signed. See Tex. R. App. P. 26.1. However, if any party timely files a motion for new trial, the time for filing a notice of appeal is extended to 90 days after the judgment is signed. See Tex. R. App. P. 26.1(a)(1). A motion for new trial must be filed within 30 days of the date the judgment was signed. Tex. R. Civ. P. 329b(a).

In this case, the judgment was signed on November 1, 2004. Consequently, the appellants motion for new trial should have been filed no later than December 1, 2004. However, the appellants did not meet this deadline. The envelope used to mail the appellants motion for new trial to the District Clerk s Office is postmarked December 2, 2004, and the file stamped copy of the motion for new trial in the District Clerk s office is dated December 6, 2004. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing. See Tex. R. Civ. P. 5. The appellants notice of appeal was filed on January 31, 2005, 91 days after the judgment was signed. //

There is no evidence in the record to rebut the evidentiary effect of the postmark. Thus, the date for filing appellants notice of appeal was not extended beyond the 30-day deadline, and this court has no jurisdiction over this appeal. See Tex. R. Civ. P. 5; Tex. R. App. P. 25.1(b).

Accordingly, this appeal is dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a) (allowing involuntary dismissal of case). All pending motions are denied.

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Higley.