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.