Jorge L. Benavides v. Mary Nelda Benavidez--Appeal from County Court at Law No 2 of Webb County

MEMORANDUM OPINION

No. 04-03-00189-CV
Jorge Luis BENAVIDES, Sr.,
Appellant
v.
Mary Nelda BENAVIDES,
Appellee
From the County Court at Law No. 2, Webb County, Texas
Trial Court No. 2001-CVH-001124-C3
Honorable Jesus Garza, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: May 7, 2003

APPEAL DISMISSED FOR LACK OF JURISDICTION

Appellant Jorge Luis Benavides, Sr. appeals from the trial court's order signed October 31, 2002, clarifying a final divorce decree and ordering appellant to turn over certain items of property. On March 23, 2003, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. See Tex. R. App. P. 30. (1)

Appellant was warned that the appeal would be dismissed if he did not respond. Appellant did not respond.

The appeal is dismissed for lack of jurisdiction; costs of the appeal are assessed against appellant. See Tex. R. App. P. 42.3(a, c); 43.4.

PER CURIAM

1. Although appellant's notice of appeal was filed within the six month period for a restricted appeal, the clerk's record shows appellant filed a premature motion for rehearing, which is the equivalent of a motion for new trial. See Wilson v. Kutler, 971 S.W.2d 557, 559 (Tex. App.-Dallas 1998, no pet.) (the court looks to the content of a motion, not the title). We deem the motion for new trial to have been filed on the date of but immediately after the trial court's order was signed. See Tex. R. Civ. P. 306c; Padilla v. LaFrance, 907 S.W.2d 454, 458-59 (Tex. 1995). A party may only file a restricted appeal if the party did not timely file a postjudgment motion. See Tex. R. App. P. 30, 26.1(c), 25.1(d)(7). Because appellant timely filed a motion for new trial, the notice of appeal was due to be filed January 29, 2003, and a motion for extension of time to file the notice of appeal was due fifteen days later on February 13, 2003. See Tex. R. App. P. 26; Martinez v. Flores, 04-99-00849-CV, 2000 WL 102668 (Tex. App.-San Antonio, January 31, 2000, pet. denied) (not designated for publication).