Dismissed and Memorandum Opinion filed June 22, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-06-00298-CV
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MOHAMMAD WAQAR D/B/A J & M GROCERY STORE, Appellant
V.
ROBERT FOSTER, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 835756
M E M O R A N D U M O P I N I O N
This is an appeal from a judgment signed November 30, 2005. Appellant filed a timely motion for new trial on December 30, 2005. When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days after the date the judgment is signed. See Tex. R. App. P. 26.1(a). The notice of appeal was therefore due February 28, 2006. See Tex. R. App. P. 26.1. Appellant filed his notice of appeal on March 30, 2006, a date more than fifteen days after the due date for the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that a motion for extension of time is Anecessarily implied@ when the perfecting instrument is filed within fifteen days of its due date).
Accordingly, on May 24, 2006, this court notified appellant that the notice of appeal was untimely and the appeal was subject to dismissal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant filed a response on June 7, 2006, in which he stated that his notice of appeal had been filed within ninety days of the filing of his motion for new trial. (emphasis supplied). The time for perfecting an appeal begins with the signing of the judgment, not the filing of a motion for new trial. See Tex. R. App. P. 26.1(a). Therefore, appellant=s argument does not support this court=s jurisdiction over the appeal.
Appellant also asserted that he is appealing from a default judgment, and therefore, he is entitled to file a restricted appeal within six months of the judgment. See Tex. R. App. P. 26.1(c). To be entitled to file a restricted appeal, not only must the party have failed to participate at trial, but the party must also have failed to file a timely postjudgment motion or request for findings of fact and conclusions of law. Tex. R. App. P. 30. Here, appellant filed a timely motion for new trial. For this reason, appellant is not entitled extend the time for filing his notice of appeal to the six-month period for filing a restricted appeal.
We conclude that this court lacks jurisdiction over the appeal. Accordingly, the appeal is ordered dismissed.
PER CURIAM
Judgment rendered and Memorandum Opinion filed June 22, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.