
Opinion issued July 13, 2006










In The
Court of Appeals
For The
First District of Texas




NO. 01–05–01164–CV




DOUGLAS JAMES BIRDSELL, Appellant

V.

MICHAEL T. ROGILLIO, Appellee




On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No.  94CV0239




MEMORANDUM OPINIONAppellee has filed a second motion to dismiss the appeal for want of
jurisdiction.  Appellant did not file a timely notice of appeal, but filed a notice of
restricted appeal.  Because appellant does not meet all the elements for a restricted
appeal, we grant appellee’s second motion to dismiss the appeal.
          On May 23, 2005, the trial court granted appellee, Rogillio, a default judgment
against appellant, Birdsell, and another party not involved in this appeal.  Appellant
timely filed a motion for new trial.  On November 28, 2005, appellant filed a notice
of restricted appeal.  Appellant’s timely filing of a motion for new trial disqualifies
him for proceeding with a restricted appeal.  See Tex. R. App. P. 30; TAC Americas,
Inc. v. Booth, 94 S.W.3d 315, 318 (Tex. App.—Austin 2002, no pet.) (setting out
failure to timely file motion for new trial as prerequisite for filing restrictive notice
of appeal).  The Clerk of the Court notified appellant to respond to appellee’s second
motion to dismiss appeal, but appellant has not done so.
          The appeal is dismissed for want of jurisdiction.  All pending motions are
denied.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Taft and Nuchia.
