Brenda Hoisager v. Howard Miller Company ( 2010 )

Opinion filed September 30, 2010

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00204-CV

                                                    __________

                                  BRENDA HOISAGER, Appellant

                                                             V.

                          HOWARD MILLER COMPANY, Appellee

                                  On Appeal from the County Court at Law

                                                          Midland County, Texas

                                                   Trial Court Cause No. CC13655

                                            M E M O R A N D U M   O P I N I O N

            The trial court signed the final judgment on April 9, 2010.  Brenda Hoisager filed a motion for new trial on May 12, 2010, thirty-three days after the date the judgment was signed.  She filed her first notice of appeal on July 6, 2010, eighty-eight days after the judgment was signed.  We dismiss the appeal.

            Tex. R. Civ. P. 329b provides that a motion for new trial must be filed within thirty days from the date the judgment is signed.  Hoisager’s motion for new trial was not timely filed. Moreover, the certificate of service attached to her motion for new trial indicates that the motion was forwarded to opposing counsel on the same day it was filed.  Therefore, the provisions of Tex. R. App. P. 9.2(b) do not apply.

            Absent a timely motion for new trial, the notice of appeal must be filed within thirty days of the date the judgment is signed.  Tex. R. App. P. 26.1.  Hoisager’s notice of appeal was not timely filed, and she did not comply with the requirements of Tex. R. App. P. 26.3 to extend the filing date.

            On August 19, 2010, the clerk of this court wrote the parties advising them that both the motion for new trial and the notice of appeal appeared to be untimely.  The clerk further requested that Hoisager reply by September 3, 2010, establishing grounds for continuing the appeal and addressing whether the motion for new trial was timely mailed.  There has been no response to our August 19 letter.

            Hoisager has failed to properly perfect an appeal.  Therefore, the appeal is dismissed for want of jurisdiction.

                                                                                                PER CURIAM

September 30, 2010

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.