Patricia Greer v. Palm Desert Manufactured Community Association

• Court: Court of Appeals of Texas
• Decided: March 19, 2009
• Docket: 08-08-00312-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

PATRICIA GREER, § No. 08-08-00312-CV Appellant, § Appeal from the v. § 448th District Court PALM DESERT MANUFACTURED § COMMUNITY ASSOCIATION, of El Paso County, Texas § Appellee. (TC#2008-1314) §

MEMORANDUM OPINION

This appeal is before the Court on our own motion for determination whether it should be

dismissed for lack of jurisdiction. See TEX .R.APP .P. 42.3(a). Finding that the notice of appeal was

not timely filed, we will dismiss the appeal.

A civil appeal is perfected when the notice of appeal is filed. TEX .R.APP .P. 26.1; 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 and 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. When a motion for new trial

is timely filed, or a party timely files a request for findings of fact and conclusions of law, the notice

of appeal is due ninety days after the judgment is signed. See TEX .R.APP .P. 26.1(a). An untimely

notice of appeal will be considered timely if it is filed within fifteen days after the due date and

includes a reasonable explanation for the appellant’s failure to file on the due date. See

TEX .R.APP .P. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

The judgment in this case was entered on July 16, 2008. Although Appellant filed a motion for new trial on August 27, 2008, it was not timely and therefore did not extend the deadline for the

notice of appeal. See TEX .R.APP .P. 26.1. Thus, the notice of appeal was due to be filed no later than

August 15, 2008. See id. Appellant did not file a notice of appeal until November 7, 2008.

Therefore, Appellant’s notice of appeal was untimely filed. By letter dated February 19, 2009, the

clerk of this Court notified Appellant in writing of our intent to dismiss the case for want of

jurisdiction, because the appeal had not been perfected. See TEX .R.APP .P. 42.3(a). Appellant has

not responded to the notice. Accordingly, we dismiss the appeal for want of jurisdiction.

GUADALUPE RIVERA, Justice

March 19, 2009

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