Gloria Garcia v. Continental Casualty Ins. Co.

• Court: Court of Appeals of Texas
• Decided: January 13, 2010
• Docket: 08-09-00298-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

GLORIA GARCIA, § No. 08-09-00298-CV Appellant, § Appeal from the v. § 34th District Court CONTINENTAL CASUALTY § INSURANCE CO., of El Paso County, Texas § Appellee. (TC# 2007-466) §

MEMORANDUM OPINION

Appellant, Gloria Garcia, appeals from a judgment entered in favor of Continental Casualty

Insurance Company. Having determined she failed to perfect her 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’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)). The notice of appeal must be filed within

thirty days after the judgment is signed unless the appealing party files a timely motion for new trial

in which case the notice of appeal must be filed within ninety days after the judgment is signed.

TEX . R. APP . P. 26.1(a)(1). To be timely, the motion for new trial must be filed within thirty days

after the judgment or other appealable order is signed. TEX . R. CIV . P. 329b(a). An untimely filed

motion for new trial does not extend the appellate deadline. Id. (motion for new trial “shall” be filed

within thirty days after the judgment is signed). However, 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 record reflects that the trial court signed its final judgment on August 12, 2009.

Accordingly, Appellant’s notice of appeal or motion for new trial was due to be filed by September

11, 2009. Appellant, however, did not file her motion for new trial until September 17, 2009, nor

did she file her notice of appeal until November 16, 2009. On November 25, 2009, we gave notice

to Appellant of our intent to dismiss for want of jurisdiction unless any party could show grounds

for continuing the appeal. Appellant filed a response, contending she simply miscalculated the time

periods and asking us to continue the appeal. We decline to do so. The times for filing a notice of

appeal are jurisdictional in this Court, and absent a timely filed notice of appeal or a timely filed

extension request, we must dismiss the appeal. See TEX . R. APP . P. 25.1(b), 26.3; Verburgt, 959

S.W.2d at 617. Finding Appellant failed to perfect her appeal because she filed the notice of appeal

outside of the time limits set forth in the Rules of Appellate Procedure, we dismiss the appeal for

GUADALUPE RIVERA, Justice

January 13, 2010

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