      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00295-CV



                                   Plaza Motors, Inc., Appellant

                                                   v.

                                    Andrew Bergstrom, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. D-1-GN-07-003035, HONORABLE GISELA TRIANA, JUDGE PRESIDING



                              MEMORANDUM OPINION


                The trial court signed a default judgment against appellant Plaza Motors, Inc. on

October 24, 2007. Plaza Motors filed a timely motion for new trial and special appearance on

November 21, 2007,1 but did not file its notice of appeal until May 5, 2008.                    Appellee

Andrew Bergstrom filed a motion to dismiss the appeal for want of jurisdiction, and on June 6,

we requested a response from Plaza Motors by June 16.                To date, Plaza Motors has not

responded to our request.

                A party who files a timely motion for new trial must file its notice of appeal within

ninety days of the day the trial court signs the judgment or order from which the appeal is taken.

Tex. R. App. P. 26.1(a)(1). A party may file a notice of restricted appeal within six months of the


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          On June 2, 2008, the trial court clerk’s office sent this Court a letter stating that it had not
received payment for the clerk’s record and that upon payment, it would file the record within
approximately twenty days. To date, a clerk’s record has not been filed. From the filings before us,
it appears that the trial court did not act on the motion for new trial, which therefore would have been
overruled as a matter of law on January 7, 2008. See Tex. R. Civ. P. 329b(c) (motion for new trial
overruled as matter of law if not decided within seventy-five days of judgment’s signing).
signing of the appealable judgment or order if it did not participate in the hearing that resulted in the

order or judgment and “did not timely file a postjudgment motion.” Tex. R. App. P. 26.1(c), 30.

Because Plaza Motor filed a timely motion for new trial, it may not pursue a restricted appeal. See

Tex. R. App. P. 30. Its notice of appeal was therefore due no later than February 6, 2008

(ninety days after date default judgment was signed, plus fifteen days for implied motion for

extension of time). See Tex. R. App. P. 26.1(a), 26.3. Thus, Plaza Motor’s notice of appeal, filed

May 5, 2008, was late, and we are without jurisdiction to consider the appeal. We grant Bergstrom’s

motion to dismiss for want of jurisdiction.

                In his motion to dismiss, Bergstrom explained that the default judgment awarded him

$10,000 in conditional fees in the event that Plaza Motors filed an unsuccessful appeal but that he

had only incurred $1,500 in fees. He attached his attorney’s affidavit explaining the fees incurred

and asked that we modify the trial court’s default judgment to award $1,500 instead of the full

$10,000. However, because we lack jurisdiction over the appeal, we are without authority to modify

the trial court’s judgment and only have the power to dismiss the appeal for want of jurisdiction. See

Tex. R. App. P. 42.3(a). We therefore must deny that portion of Bergstrom’s motion.



                                                __________________________________________

                                                David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Dismissed for Want of Jurisdiction

Filed: August 7, 2008




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