United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 6, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-50152 Summary Calendar

CYNTHIA CURRY; TIM CURRY, Plaintiffs-Appellants, versus HEB FOOD STORES, INC.; CHARLES BUTT; DAN E. BUTT, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas (USDC No. A-02-CV-771-LY) _______________________________________________________

Before REAVLEY, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:* Summary judgment was properly granted by the district court based on the reasoning in the magistrate’s report and recommendations. The issue of whether the

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. district court abused its discretion in denying Plaintiffs' motion for extension of time was not raised in the notice of appeal and is therefore waived.

AFFIRMED.