11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Excellence 2000, Inc.; Sherwin Allen; and Claudis Allen

Appellants

Vs.                   No. 11-01-00132-CV B Appeal from Dallas County

Elbert Moore

Appellee

The trial court signed the default judgment on September 19, 2000.  Appellants timely filed a motion for new trial.  On March 21, 2001, appellants filed a notice of restricted appeal.  On October 23, 2001, appellants filed a Aregular@ notice of appeal.  Appellee has filed in this court a motion to dismiss for want of jurisdiction.  The motion is granted, and the appeal is dismissed.

Appellee contends that a restricted appeal is not an available remedy because appellants filed a motion for new trial.  Appellants respond that they had no notice of the hearing on their motion for new trial and that, therefore, a restricted appeal is proper.  We disagree.

TEX.R.APP.P. 30 provides that a party who did not participate at trial and Awho did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal. . .may file a notice of [restricted] appeal.@  When they filed their motion for new trial, appellants timely filed a postjudgment motion.  Pursuant to Rule 30, it is the filing of a postjudgment motion and not notice of a hearing on the motion that precludes the remedy of a restricted appeal.  Therefore, a restricted appeal is not an available remedy in this case.  See IKB Industries v. Pro-Line Corporation, 938 S.W.2d 440 (Tex. 1997).

Appellants= 2001 notice of appeal was filed over a year after the judgment was signed and was not timely.  TEX.R.APP.P. 26.1.  Appellants have failed to perfect an appeal, restricted or Aregular.@  TEX.R.APP.P. 25.1

The appeal is dismissed for want of jurisdiction.

PER CURIAM

June 13, 2002                                                             

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.