Donald Dankowich and Carmines LLC v. R-1 Management, LLC

• Court: Court of Appeals of Texas
• Decided: December 11, 2018
• Docket: 01-18-00799-CV
• Status: Published

Opinion

Opinion issued December 11, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00799-CV ——————————— DONALD DANKOWICH AND CARMINES LLC, Appellants V. R-1 MANAGEMENT, LLC, Appellee

On Appeal from the 458th District Court Fort Bend County, Texas Trial Court Case No. 17-DCV-238384

MEMORANDUM OPINION

In the underlying proceeding, the trial court signed a final judgment on

January 8, 2018 in favor of appellee R-1 Management, LLC and against appellants,

Donald Dankowich and Carmines LLC. On September 6, 2018, appellants filed a “notice of appeal of the judgment dated July 10, 2018.”1 The trial court clerk sent a

copy of the notice of appeal to this Court, and the Clerk of this Court docketed the

appeal. See TEX. R. APP. P. 12.1, 25.1(a), (f).

We dismiss the appeal for want of jurisdiction.

Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended

to ninety days after the date the judgment is signed if, within thirty days after the

judgment is signed, any party timely files a motion for new trial, motion to modify

the judgment, motion to reinstate, or, under certain circumstances, a request for

findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(a); TEX. R. CIV. P.

296, 329b(a), (g). The time to file a notice of appeal also may be extended if, within

fifteen days after the deadline to file the notice of appeal, a party properly files a

motion for extension. See TEX. R. APP. P. 10.5(b), 26.3. A motion for extension of

time is necessarily implied when an appellant, acting in good faith, files a notice of

appeal beyond the time allowed by rule 26.1, but within the fifteen-day extension

1 Appellants filed an earlier notice of appeal, and the Clerk of this Court docketed the appeal in No. 01-18-00321-CV. See TEX. R. APP. P. 12.1. On July 10, 2018, we dismissed that appeal for nonpayment of required fees and want of prosecution. See Carmine’s LLC v. R1 Mgm’t, LLC, No. 01-18-00321-CV, 2018 WL 3353293, at *1 (Tex. App.—Houston [1st Dist.] July 10, 2018, pet. filed). To any extent that appellants’ notice of appeal, filed on September 6, 2018, sought review of this Court’s judgment, the Clerk of this Court forwarded a copy of the notice of appeal to the Clerk of the Supreme Court of Texas. See TEX. R. APP. P. 53.1, 53.7. 2 period provided by rule 26.3. See TEX. R. APP. P. 26.1, 26.3; Verburgt v. Dorner,

959 S.W.2d 615, 617 (Tex. 1997).

Here, the trial court signed the final judgment on January 8, 2018. The record

filed in this Court does not include a timely filed motion for new trial, motion to

modify the judgment, motion to reinstate, or a request for findings of fact and

conclusions of law. A notice of appeal, therefore, was due by February 7, 2018, or

by February 22, 2018, with a fifteen-day extension. See TEX. R. APP. P. 26.1(b), 26.3.

Appellants’ notice of appeal filed on September 6, 2018 was untimely to perfect an

appeal of the January 8, 2018 final judgment to this Court. Without a timely filed

notice of appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P.

25.1; Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 (Tex.

App.—Houston [1st Dist.] 2012, no pet.).

The Clerk of this Court notified appellants that the appeal was subject to

dismissal for lack of jurisdiction unless they filed a response showing how this Court

has jurisdiction over the appeal. Appellants did not respond.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a), 43.2(f). We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Higley, Lloyd, and Caughey.