Rosario Cartwright and Ishmael Cartwright v. Faviola Araceli Armendariz

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ ROSARIO CARTWRIGHT AND No. 08-16-00129-CV ISHMAEL CARTWRIGHT, § Appeal from the Appellants, § 143rd District Court V. § of Ward County, Texas FAVIOLA ARACELI ARMENDARIZ, § (TC# 14-09-23446-CVW) Appellee. §

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MEMORANDUM OPINION

This appeal is before us to determine whether we have jurisdiction. Finding that Appellants, Rosario Cartwright and Ishmael Cartwright, did not timely file their notice of appeal, we dismiss the appeal for want of jurisdiction.

A civil appeal is perfected when the notice of appeal is timely filed. TEX.R.APP.P. 25.1, 26.1; see Restrepo v. First National Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238 (Tex.App.--El Paso 1995, no writ). If the notice of appeal is untimely, the appellate court lacks jurisdiction and must dismiss the case. See Charette v. Fitzgerald, 213 S.W.3d 505, 509 (Tex.App.--Houston [14th Dist.] 2006, no pet.). In an ordinary civil case, the notice of appeal must be filed within 30 days after the judgment or appealable order is signed or within 90 days if any party timely files a motion for new trial, motion to modify the judgment, motion to reinstate under TEX.R.CIV.P. 165a, or makes a request for findings of fact and conclusions of law. TEX.R.APP.P. 26.1(a). The appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline passes, the appellant files (1) the notice of appeal in the trial court and (2) a motion for extension of time complying with Rule 10.5(b). TEX.R.APP.P. 26.3; see TEX.R.APP.P. 10.5(b); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

The trial court entered the final judgment on March 10, 2016. A motion for new trial must be filed no later than thirty days after the judgment or order complained of is signed. TEX.R.CIV.P. 329b(a). Thus, the motion for new trial was due to be filed on April 9, 2016, a Saturday. Under Rule 4.1, the deadline for filing the motion for new trial was extended to Monday, April 11, 2016. See TEX.R.APP.P. 4.1(a). Appellants did not file their motion for new trial until April 12, 2016, one day late. Consequently, their notice of appeal was due to be filed April 11, 2016 (thirty days after the trial court signed the judgment), but Appellants did not file their notice of appeal until June 9, 2016. Because Appellants failed to timely file their notice of appeal, we dismiss the appeal for want of jurisdiction.

September 14, 2016 YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

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