JEFF COVINGTON, Appellant v. BANDLANDIA, INC., ET AL., Appellees

DISMISS; Opinion filed June 17, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00392-CV
............................
JEFF COVINGTON, Appellant
V.
BANDLANDIA, INC., ET AL., Appellees
.............................................................
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-09979
.............................................................
MEMORANDUM OPINION
Before Chief Justice Thomas and Justices Bridges and FitzGerald
        Appellant Jeff Covington appeals the trial court's October 26, 2007 final order. Appellant's notice of appeal was untimely. We dismiss the appeal for lack of jurisdiction.
Background
        The trial judge signed a final order on October 26, 2007. The motion for new trial was due by Monday, November 26, 2007. See Tex. R. Civ. P. 4, 329b. Covington's motion for new trial is file-stamped November 28, 2007.
        Absent a timely motion for new trial, Covington's notice of appeal was due by Monday, November 26, 2007. See Tex. R. App. P. 4.1(a), 26.1. Even with a timely-filed motion for new trial, Covington's notice of appeal was due by January 24, 2008. See Tex. R. App. P. 26.1(a)(1). Covington's notice of appeal is file-stamped February 26, 2008, outside the time for filing the notice of appeal and outside the fifteen-day period provided by rule of appellate procedure 26.3. See Tex. R. App. P. 26.3.
Appellate Jurisdiction
        We questioned our jurisdiction over this appeal, and on April 18, 2008, we requested the parties to submit briefs addressing that question. Tex. R. App. P. 42.3(a). Covington submitted a responsive brief on April 29, 2008.
        In his response brief, Covington provides documentation reflecting that his motion for new trial was sent on November 20, 2007 via Federal Express overnight mail to “Mr. Jim Hamlin, District Clerk, 1st Floor Crowley Courts Bldg., 133 N. Industrial Blvd., LB 45, Dallas, TX 75207. Covington asserts he confirmed delivery on November 21, 2007. There is no documentation to reflect confirmation of delivery on November 21, 2007. Covington states he has no explanation from the trial court as to why the motion for new trial was not filed until November 28, 2007. However, Covington's motion for new trial was forwarded by Federal Express to an incorrect address for the District Clerk. The correct address for the Dallas County District Clerk's office is George L. Allen, Sr. Courts Building, 600 Commerce Street, 1st Floor, Suite 103, Dallas, Texas 75202.
        Covington is unable to rely on the “mailbox” provision of Rule 5 of the Texas Rules of Civil Procedure to assert timely filing of his motion for new trial. Texas Rule of Civil Procedure 5 provides in pertinent part:
 
If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time.
 
Tex. R. Civ. P. 5. Rule 5 specifically states the motion for new trial must be sent by “first-class United States mail.” Federal Express is not first-class United States mail. Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 777 S.W.2d 800, 801 (Tex. App.-Eastland 1989), rev'd on other grounds, 787 S.W.2d (Tex. 1990). See also Carpenter v. Town & Country Bank, 806 S.W.2d 959, 960 (Tex. App.-Eastland 1991, writ denied). Further, Rule 5 requires that a document be properly addressed. Stokes v. Aberdeen Ins. Co., 918 S.W.2d 528, 530 (Tex. App.-Austin 1995, no pet.).
        Again assuming the motion for new trial was timely-filed, Covington's notice of appeal was due ninety-days from the date of the final order, by January 24, 2008. See Tex. R. App. P. 26.1(a)(1). In Covington's response brief, he states he filed his notice of appeal on February 19, 2008. Covington's cover letter forwarding the notice of appeal is dated February 19, 2008 and indicates it was mailed to Mr. Jim Hamlin, District Clerk, 1st Fl. Frank Crowley Courts Bldg., 133 N. Industrial Blvd., LB 45, Dallas, Texas 75207. Covington's notice of appeal was filed on February 26, 2008. The notice of appeal was untimely. Covington's reliance on Rule of Appellate Procedure 26.3 is ill-founded. To extend the deadline for filing a notice of appeal, the notice of appeal must be filed within fifteen days of the deadline for filing the notice of appeal. See Tex. R. App. P. 26.3. Covington's notice of appeal was filed beyond fifteen days from the deadline for filing the notice of appeal.
        We conclude that we lack jurisdiction to entertain Covington's appeal.
        The appeal is DISMISSED.
 
                                                          PER CURIAM
080392F.P05