Manron Associates, Inc. d/b/a Margarita's Lounge v. Robert Diaz--Appeal from County Court at Law No 5 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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MANRON ASSOCIATES, INC. )

D/B/A MARGARITA S LOUNGE, ) No. 08-06-00020-CV

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Appellant, ) Appeal from

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v. ) County Court at Law No. 5

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ROBERT DIAZ, ) of El Paso County, Texas

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Appellee. ) (TC# 2001-3812)

MEMORANDUM OPINION

Manron Associates, Inc. d/b/a Margarita s Lounge appeals from a judgment granted in favor of Robert Diaz. 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 26, 2005. Appellant s motion for new trial, if any, was due to be filed no later than October 26, 2005. Appellant filed the motion for new trial one day late, on October 27, 2005. In the absence of a timely-filed motion for new trial, the deadline for filing the notice of appeal was October 26, 2005, thirty days after the trial court signed the judgment. Appellant did not file the notice of appeal until January 17, 2006. By letter dated January 26, 2006, this Court gave Appellant notice of our intent to dismiss this appeal because the appeal 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.

(Chew, J., not participating)