
NO. 07-06-0054-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MARCH 20, 2006

______________________________
 
PATSY R. THOMPSON AND KENNETH N. THOMPSON, APPELLANTS

V.

WILLIAM BUTLER, JR., A FRANCHISEE, D/B/A SUBWAY,
SUBWAY FRANCHISE #12837, APPELLEE
_________________________________

FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 03-09-19300; HONORABLE HAROLD PHELAN, JUDGE
_______________________________


Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
	Appellants Patsy R. Thompson and Kenneth N. Thompson appeal the summary
judgment entered in favor of appellee William Butler, Jr. d/b/a Subway.  We dismiss the
appeal.
	The record before us reveals that the order granting summary judgment was signed
on September 7, 2005.  Appellants were required to file their motion for new trial or notice
of appeal with the clerk of the trial court no later than 30 days after the signing of the final
judgment, or by October 7, 2005.  TEX. R. APP. P. 26.1; TEX. R. CIV. P. 329b.  A motion
for new trial was filed on October 13, 2005, and the notice of appeal was filed on
December 9, 2005.  Because the deadline to file a motion for new trial or to perfect an
appeal was October 7, the notice of appeal was untimely.  Id. 
	Appellee filed a motion to dismiss the appeal on February 6, 2006.  In their
response to the motion to dismiss, appellants allege the trial court clerk failed to provide
them notice of the judgment as required by Rule 306a of the Texas Rules of Civil
Procedure, thereby expanding all the deadlines that are based on the date a final judgment
is signed, pursuant to Rule 306a(4).  However, Rule 306a(5) provides that in order to
establish the application of Rule 306a(4), "the party adversely affected is required to prove
in the trial court, on sworn motion and notice, the date on which the party or his attorney
first either received a notice of the judgment or acquired actual knowledge of the signing
and that this date was more than twenty days after the judgment was signed."  The record
before us does not include such a sworn motion or evidence of a hearing on a sworn
motion.  Rule 306a(4) does not operate to make appellants' notice of appeal timely filed. 
See John v. Marshall Health Services, Inc., 58 S.W.3d 738 (Tex. 2001) (per curiam)
(discussing application of Rule 306a(4)).    
	A timely notice of appeal is essential to invoke our appellate jurisdiction.  In re
A.L.B., 56 S.W.3d 651, 652 (Tex.App.-Waco 2003, no pet.).  If the notice is untimely, the 

court of appeals can take no action other than to dismiss the proceeding.  Id.  Accordingly,
we dismiss the appeal for want of jurisdiction.  TEX. R. APP. P. 42.3.

							James T. Campbell
							        Justice




 
