                                    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




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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




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