Hector Medina v. John Johnson and Christopher Johnson D/B/A Johnson Enterprises--Appeal from 171st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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HECTOR MEDINA, ) No. 08-06-00024-CV

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Appellant, ) Appeal from

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v. ) 171st District Court

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JOHN JOHNSON and ) of El Paso County, Texas

CHRISTOPHER JOHNSON D/B/A )

JOHNSON ENTERPRISES, ) (TC# 2003-329)

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Appellees. )

MEMORANDUM OPINION

Hector Medina appeals from a judgment granted in favor of John Johnson and Christopher Johnson d/b/a Johnson Enterprises. Having determined that Appellant failed to timely perfect this appeal, we dismiss the appeal for want of jurisdiction.

A civil appeal is perfected when the notice of appeal is filed. Tex.R.App.P. 26.1; see Restrepo v. First Nat. 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)). The notice of appeal must be filed within thirty days after the judgment. Tex.R.App.P. 26.1. However, the deadline for filing notice of appeal is extended to ninety days after the judgment is signed when a motion for new trial is timely filed. Tex.R.App.P. 26.1(a)(1). A motion for new trial is due to be filed prior to or within thirty days after the judgment is signed. Tex.R.Civ.P. 329b(a). 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).

The trial court signed the judgment on September 9, 2005. Appellant s motion for new trial, if any, was due to be filed no later than October 9, 2005. Appellant timely filed the motion for new trial on October 4, 2005. Thus, the notice of appeal was due to be filed on December 8, 2005. Appellant did not file the notice of appeal until January 11, 2006, more than fifteen days after the deadline. By letter dated January 26, 2006, this Court gave Appellant notice of our intent to dismiss this appeal because it had not been timely perfected. See Tex.R.App.P. 42.3(a). Appellant has not filed a response. We dismiss the appeal for want of jurisdiction.

March 9, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.