CLYDE ODEMS v. KEOKI WILLIAMS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang–Miers

The trial court signed a default judgment against Clyde D. Odems on September 22, 2010.   Odems filed a timely motion for new trial on October 20, 2010.   On April 4, 2011, Odems filed his notice of appeal.

We sent Odems a letter questioning this Court's jurisdiction over the appeal because it appeared the notice of appeal was untimely.   We requested Odems to file a jurisdictional brief on this issue.   Odems filed a jurisdictional brief.   He asserts that his notice of appeal is timely because it is a restricted appeal.   A party who did not participate, either in person or through counsel, in the hearing that

resulted in the judgment complained of and who did not timely file a post-judgment motion or notice of appeal, may file a notice of restricted appeal within six months after the judgment is signed.   Tex.R.App. P. 30.   However, when a party files a timely post-judgment motion, that party is not permitted to bring a restricted appeal.   See Lab. Corp. of Am. v. Mid–Town Surgical Ctr., Inc., 16 S.W.3d 527, 528 (Tex.App.—Dallas 2000, no pet.).   Because Odems filed a timely motion for new trial, a restricted appeal is not an option available to him.   Pursuant to the regular appellate timetable, the notice of appeal was due December 21, 2010.   See Tex.R.App. P. 26.1(a)(1).   The notice of appeal filed by Odems on April 4, 2011 was untimely.   Without a timely filed notice of appeal, this Court lacks jurisdiction.   See Tex.R.App. P. 25.1(b).  Accordingly, we dismiss this appeal for want of jurisdiction.   See Tex.R.App. P. 42.3(a).

110384F.P05

ELIZABETH LANG–MIERS JUSTICE