Opinion
No. 01-05-00943-CV
Opinion issued January 26, 2006.
On Appeal from the 151st District Court, Harris County, Texas, Trial Court Cause No. 2004-36454.
Panel consists of Justices NUCHIA, KEYES, and HANKS.
MEMORANDUM OPINION
Appellee, Citibank (South Dakota) N.A. (Citibank) requests we dismiss this appeal for lack of jurisdiction.
The trial court granted Citibank a default judgment against appellant, Joicy A. Bassie on, on April 6, 2005. Bassie filed a motion for new trial on April 29, 2005, which was overruled by operation of law on June 23, 2005. On October 6, 2005, Bassie filed a notice of appeal for a restricted appeal.
To qualify for a restricted appeal, an appellant must establish that: (1) she filed the notice of restricted appeal within six months after the judgment or order appealed from was signed; (2) she was a party to the underlying suit; (3) she did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or notice of appeal; (4) she did not participate, either in person or through counsel, in the actual trial of the case; and (5) the trial court erred and the error is apparent from the face of the record. Tex.R.App.P. 30, 26.1(c); Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Citibank asserts that Bassie does not meet the third requirement because she did file a timely post-judgment motion, a motion for new trial. We agree, and, therefore, conclude that we do not have jurisdiction to consider this appeal as a restricted appeal.
Neither do we have jurisdiction to consider the appeal as a conventional appeal. Having timely filed a motion for new trial, Texas Rule of Appellate Procedure 26.1(a)(1) required Bassie to file her notice of appeal within 90 days of the date of the signing of the judgment complained of (by July 5, 2005), or within 105 days (by July 20, 2005) if she filed it pursuant to Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), or with a motion to extend time pursuant to Texas Rule of Appellate Procedure 26.3. The notice of appeal having been filed on October 4, 2005, it was well outside the time to meet the jurisdictional requirements for a conventional appeal.
Accordingly, we dismiss the appeal for want of jurisdiction.