Gabriel Ackal, Sr., Hitz Video, Inc., Ackal Family Investments, L.L.C., and Southern Video, L.L.C. v. Blockbuster, Inc., Franchise Mortgage Acceptance Company, and Mark Gilman--Appeal from 68th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GABRIEL ACKAL, SR., HITZ VIDEO, INC., )

ACKAL FAMILY INVESTMENTS, L.L.C., )

and SOUTHERN VIDEO, L.L.C., ) No. 08-02-00268-CV

)

Appellants, ) Appeal from the

)

v. ) 68th District Court

)

BLOCKBUSTER, INC., MARK GILMAN, ) of Dallas County, Texas

and FRANCHISE MORTGAGE )

ACCEPTANCE COMPANY, ) (TC# 02-02597)

)

Appellees. )

O P I N I O N

Pending before the Court are three motions: (1) Appellants= motion to retain case; (2) Appellees Blockbuster, Inc. and Mark Gilman=s motion to dismiss; and (3) Appellee Franchise Mortgage Acceptance Company=s motion to dismiss. The motions filed by Appellees urge this Court to dismiss this appeal for want of jurisdiction. Such a dismissal is appropriate under Tex.R.App.P. 42.3 which provides:

Under the following circumstances, on any party=s motion--or on its own initiative after giving ten days= notice to all parties--the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

Appellants attempt to appeal from a summary judgment. The trial court signed a joint motion for severance on March 19, 2002. This severance order had the effect of making the summary judgment final. A motion for new trial extends the deadline for filing a notice of appeal of a final judgment. Tex.R.App.P. 26.1. In order to be effective, a motion for new trial must be filed on or before thirty days from the date the judgment is signed.[1] Tex.R.Civ.P. 329b.

An order granting a severance in a case with a judgment in the cause ordered to be severed is effective when signed. McRoberts v. Ryals, 863 S.W.2d 450, 452-53 (Tex. 1993). In this case, a motion for new trial was due April 18, 2002.

Appellants executed a motion for new trial on April 18, 2002. It was sent to the Dallas County District Clerk=s Office on the same day, via United Parcel Service overnight mail. The motion arrived at the District Clerk=s Office on April 19, 2002. As such, Appellants= motion for new trial was not timely filed.[2]

A civil appeal is perfected when the notice of appeal is filed. Tex.R.App.P. 26.1; see Restrepo v. First Nat=l Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238 (Tex.App. -El Paso 1995, no writ)(applying former Tex.R.App.P. 40(a)(1)). When no motion for new trial or request for findings of fact or conclusions of law is filed, the notice of appeal must be filed within thirty days after the judgment is signed. Tex.R.App.P. 26.1; Restrepo, 892 S.W.2d at 238. A notice of appeal is considered timely if filed within fifteen days of the due date and accompanied by a reasonable explanation for the failure to file on the due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Because Appellants failed to file a timely motion for new trial and the notice of appeal was not timely filed, we have no jurisdiction over this appeal. The motions to dismiss filed by Appellees Blockbuster Inc. and Mark Gilman and Appellee Franchise Mortgage Acceptance Company are granted. Appellants= motion to retain case is denied. Accordingly, this appeal is dismissed pursuant to Tex.R.App.P. 42.3(a).

September 26, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

[1] Appellants agreed that the severance order was executed by the trial court on March 19, 2002. However, they argue that the judgment did not become final until it was filed with the Dallas County District Clerk=s Office on March 20, 2002. They therefore contend the motion for new trial was due by April 19, 2002. Appellants cite no authority for this proposition and this Court could find none.

[2] Although not specifically raised by Appellants in the motion to retain case, we note that the so called Amailbox rule@ articulated in Tex.R.Civ.P. 5 does not apply in this case because Appellants delivered the motion for new trial through a private courier service rather than the United States Postal Service. See Carpenter v. Town & Country Bank, 806 S.W.2d 959, 960 (Tex.App.--Eastland 1991, writ denied).